IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


1.0 


I.I 


•^        140 


—    6" 


25 

1.8 


1-25  IIIIIU   IIIIII.6 


<^ 


w 


/} 


''.»*' 


Photographic 

Sciences 

Corporation 


33  WEST  MAIN  STREET 

WEBSTER,  NY.  145S0 

(716)  872-4503 


^i«a 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibjlographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  .    ;  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  nrethod  of  filming,  are  checked  below. 


D 

D 
D 

D 
D 
D 
D 

0 


n 


D 


Coloured  covers/ 
Couverture  de  couleur 

Covers  damaged/ 
Couverture  endommag^e 

Covers  restored  and/or  laminated/ 
Couverture  restaurde  et/ou  pellicul6e 

Cover  title  missing/ 

Le  titre  de  couverture  manque 

Coloured  maps/ 

Cartes  g6ographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations/ 
Flenches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
Relii  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  reliure  serr6e  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  intirieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajout^es 
lors  dune  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  6tait  possible,  ces  pages  n'ont 
pas  6t6  filmies. 

Additional  comments:/ 
Commentaires  suppldmentaires. 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  details 
de  cat  exemplaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mdthode  normale  de  filmage 
sont  indiquds  ci-dessous. 

□    Coloured  pages/ 
Pages  de  couleur 

□    Pages  damaged/ 
Pages  endommagdes 

□    Pages  restored  and/or  laminated/ 
Pages  restaurdes  et/ou  pellicul6es 

□    Pages  discoloured,  stained  or  foxed/ 
Pages  d6color6es,  tachet^es  ou  piqu6es 

iges  detached/ 
jges  d6tach6es 


□    Pages  detached/ 
Pat 


□    Showthrough/ 
Transparence 

□    Quality  of  print  varies/ 
Quality  indgale  de  I'impression 

□    Includes  supplementary  material/ 
Comprend  du  materiel  suppldmentaire 

□    Only  edition  available/ 
Seule  Edition  disponible 


D 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  M  filmdes  d  nouveau  de  fapon  A 
obtenir  la  meilleure  image  possible. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film4  au  taux  de  reduction  indiquA  ci  dessous. 


10X 

14X 

18X 

22X 

26X 

30X 

I 

1™^™ 

13V 

16X 

20X 

1^ 

28X 

D 


32X 


er 

a 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

Library  of  Congress 
Photoduplication  Service 

The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


L'exemplaire  filmd  fut  reproduit  grdce  d  la 
g6n6rosit6  de: 

Library  of  Congress 
Photoduplication  Service 

L'^s  images  suivantes  ont  6t6  reproduites  avec  le 
pius  grand  sotn,  compte  tenu  de  la  condition  et 
de  la  •  T>ttat6  de  l'exemplaire  film6,  et  en 
cok  ''~r'riit6  avec  les  conditions  du  contrat  de 
filmi  je. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  lest  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — «►  (meaning  "CON- 
TINUED "),  or  the  symbol  V  (meaning  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  exemplaires  originr^ux  dont  la  couverture  en 
papier  est  imprimde  sont  film6s  en  commenpant 
par  le  premier  plat  et  en  terminant  soit  par  la 
dernldre  page  qui  comporte  une  empreinte 
d'imprasslon  ou  d'illustration,  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  film6s  en  commengant  par  la 
premidre  page  qui  comporte  une  empreinte 
d'imprasslon  ou  d'illustration  et  en  terminant  par 
la  dernidre  page  qui  comporte  une  telle 
empreinte. 

Un  des  symboles  suivants  apparaitra  sur  la 
derniire  image  de  cheque  microfiche,  selon  le 
cas:  le  symbole  —^  signifie  "A  SUIVRE  ",  le 
symbole  V  signifie  "FIN". 

Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
film68  A  des  taux  de  reduction  diffdrents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  cliche,  il  est  filmd  d  partir 
de  Tangle  sup6rieur  gauche,  de  gauche  d  droite, 
•t  de  haut  en  bas,  en  prenant  le  nombre 
d'Images  ndcessaire.  Les  diagrammes  suivants 
lllustren'.  la  mdthode. 


re. 


] 


1 

2 

3 

4 

5 

6 

( 

LEADING 


yj 


'J -26' 


in'x 


CASES  SIMPLIFIED. 


.HOtl.Kl  TIDN  111     WW.  i.KAlMNi;  I  ASKS  IN 


EdUlTY  AND  CONSTITUTIONAL  LAW. 


■Y 


JOHN    D.'^LAWSON, 

AvXliurof'A  Cotu-oniaticr  <■/  tfnrds.  riirnsis  <i»,l  Ve,f!nilionii: 
"  Uaagea  ami  Ciittoma,"  •'  lUjxrt  aiiil  Opinion  Evidence." 


ST.   LOl'IS: 
F.  11.  THOM.VS  &  COMrANY. 

l.HHIl. 


V^^ 


y^^\1> 


\<i^'^ 


Iliili'ifil  .Hcui-iln)}.' I'l   \cl   .if  (■■•ii;.Mi'--.  Ill  llii'  yciir  l*-^:'.,  Iiy 

.InllV    1).   I    \\\  -UN, 
III  llii' ' 'lint' of  llir   l.ilir.inaii  •■!  (  ■Mi>,'ri'--,  .it  U  a-liiiijclmi- 


I'res*  (1/  .\'i.niii  .li'iirs  I'rnitiini   > '• 


^aam 


I'K  KF  A(    K. 


The  f;ivnr  wiili  wliicli  my  lir^i  volimu"  of  I,r..\i>iM.  (  \>i;s 
SrMi'iiiii.i)  Ims  licc'M  rt'ci  ivri'  liy  tlio  prnfi'ssii'ii  is  tlic  in- 
iluct'iiiiMit  whi<-li  li;is  Inl  iiic  t'l  t:tat  tlio  cjisch  in  I''.(,ii  iiy  siihI 
in  Cmn-h  ri  riMN  M.  |,\\v  in  ilu'  inanmr  I  licfuic  :iiici|i;t'(l  in 
lirt'>('ntiii;L:  ti>  the  iiractilionci-  suni  tin-  stmUnt  the  Iculing 
<!isi's  (if  llif  (  omVi()\  Law. 

1  taUf  till'  lilH'i''v  to  ri';u';it  in  this,  my  sccdnil  \ii|nni('  df 
I,i;.»iPiN.i  (  Asi.s  Snii'i.ii  ii:ii,  tin-  aim  \v!iicli  I  annuiinicil  in 
my  lir'l  vulumc;  1.  To  ^ivi'  the  iTa<k'r  si  coilfction  of  ilie 
ackiiowlfiliiiMl  ioailintr  (•a--i'.s  in  Iv.hitv  and  CoNsirn  iionai. 
L\\\'.  "J.  To  |iri'>rut  tiii's(>  in  a  .stylo  whicli  .snail  aiirst  his 
attoiition.  itMiih-r  it  possililc  for  him  to  aciiiiire  ttu-ir  |)rii  ci- 
|t!t'.s  roailily.  ami  fix  those  principk'.s  in  iii.s  mind  iiniuriiiii- 
lii^n'd  hy  nniniporlMiit  and  sonu-timi's  iiniiitclliirihlo  f-n-ts. 
Ijiiw  far  [  liavi'  snccci'di-d  in  liotii  volnnu's  I  have  ihe 
profi's-ion  to  jiidixc. 

TIk-  in;iny  t'\c»'iitioiis  to  viii.'ii  all  the  cla^li''  rul<  -  if 
(•i|nity  arc  snlijict  ha\c  made  it  nceessary  for  me.  in  maii\- 
iiistani-es.  to  appenil  note-;  to  the  eases  in  wl.ieh  to  si  I  ont 
and  explain  these  exeepLions.  'I'lie  s]i;iees  left  iit  the  ends  of 
t'.K'se  notes  the  stn<)eiit  will  fuid  convenient  pl.'iee.s  in  which 
t  >  mark,  foi'  iiia  u-wn'instruetion.  any  siihseipient  cases  which 
may  c  mie  under  his  notice  in  iiis  I'eadiii'i^. 

I  intend  at  an  eaily  day  to  complete  thi.s  series  by  a 
vohiine  of  Leadinij  Cases  iu  the  Criminal  Law, 

.].  I).  L. 

Si    Loll-.  June.  \xx:'<. 


CONTENTS. 


PART     I. 

EQUITY   CASES   SIMPLIFIED. 

TRUSTS. 

I'ai;e. 
Uses  and  Trusts  — 

T'jrrel  's  Case    .        , I 

NoU 1.  2,  ;» 

Shelley^n  Case 4 

Note 4,  5 

EXECUTKD  AND    EXKCLTOUY    Thcsts  — "  E<jirrY    Follows 
TiiK  Law"  — 

Lord  Glenorchy  v.  BoavUle. 6 

Note 7 

IMPEUFECT  Conveyance  may  CoNsrnirK  \  Tiuyr  — 

Wadsworth  v.  Wendell « 

Note K,  1),  10 

Ellison  V.  Ellison 8 

AntrO'bus  v.  Smith         .        .        .        .        .        .        9 

Pirhards  v.  Delhvidge 10 

Precatohy  TnLSTS  — 

Harding  v.  Olyn 11 

Note II,  12,  13 

Greene  v.  Greene 12 

Wynne  v.  Hawkins 12 

Sale  V.  Moore 13 

BesiiltingTiu'sts  — Pakty  Paying  Pckcii ask  Money  — Ad- 
vancement — 

Dyer  v.  Dyer 14 

Note     .        . 15,  Ifi,  17 

Dudley  v.Bachelder 15 

Ex  parte  Yallop 16 

Baldwin  v.  Campfield 16 

(V) 


VI 


COXTKNTS. 


Failihk  ok  TisrsT  — 

Mdijiir  t'f  Crliiwcstcr  v.  M'doil 18 

iV'/^■ IM,  li» 

CiiAUii'.\iu.i',  Tiiisrs  — Tin:  Cv  Puiw  Dix  timm: — 

Jackxon  V.  I'lnllipA 20 

Note 'ji 

CoNsTKUCTIVi;     TllUSTS  —  VlADou's     LlI'.N      Kilt     I'lltCHASK 
MoNKY — 

Mack-rrth  v.  Si/mmons 22 

y<ite 22,  ;^3 

Samk  —  I'mniiASKs  HY  Tiu'steeh  — 

Ke.ech  v.  Sitiulfanl 24 

Ftix  V.  Mackrelh 25 

Note 25,  2G 

Robinson  v.  Pett 2(> 

Pl'KCHA8E8  FROM  TllUSTEES  — 

Elliot  V.  Merrymnn 27 

Note 28 

KESPONsinii.iTY  Koit  Act  of  Co-Tkihtei; — 

Townley  v.  Sherborne 29 

Brice  v.  Stokes no 

Note 30,  31 


WILLS. 
Wills  — 

Ashburner  v.  Macgnire 

Bland  v.  Mnyo   .... 

Smith  V.  Lampion 

Note 

Donatio  Moktis  Catsa  — 

Ward  V.  Turner  .        .        .        . 

Note 

Gourleu  v.  Linsenbigler 
Edwards  v.  Jones 
Jones  V.  Selby 
Moore  v.  Darton  . 
Hairki.is  v.  Btewitt 
Sneckner  v.  Taylor 


3(! 


.   32 
.   32 

.   33 

3S,  35 

.  86 

37,  38 

.  37 

.  87 

.  87 

.  37 

.  38 

.  88 


TAliB 


'rit( 


\H 

IN 

n» 

• 

I'O 
'M 

IlA.SK 

22 

L'2, 

;?3 

24 

2,'> 

.         25, 

2(i 

• 

2(i 

2" 

• 

28 

23 

HO 

.         30, 

31 

32 
.  32 
.  33 
3J,  35 

.  3G 

3(!,  37,  38 

.  37 

.  37 

.  37 

.  37 

.  38 

.  38 


CONTKNTS. 


vi! 


MlSCKl.l-ANKOUS. 

i-\<;k 

Cmnvkksiun  —  "P'lii'iiv    LiMiKs   (IN    riiAi  am   1)i>nk.  wiiii  ii 

Uroiir  TO  HI.  Dum:  "  - 

Fletcher  v,  Aiihhuriiir 3!' 

Xi,l,- 3'.t,   40 

Ackroijd  V.  .Smitlismt  .         .         .         .         .         .         .41 

Xote 43 

Ki.KcrioN  — 

Wilhaiiks  \ .   Wilhaidn 44 

lirodie  V.  Iliirry 44 

Cooper  V.  Cooper 45 

Note ^'s  ^' 

I'KHKOKMANCK,  —  "  Kljt  IIY    iMl'l    rl,>AN    ISII.NIIUN    luKlI.KII. 
AN  OUI.KIA HON  "  — 

Wilcockg  V.  W'ikocka 

Blandy  v.  Widmore    .... 

Oliver  V.  lirickland    .... 

Note 

Lechmere  v.  Earl  <jf  Curlinle 

Sa  n.SKACTION  — 

Talbiit  V.  Duke  r/  Shreienbury 
Chancey's  Ciise  . 
Strong  v.  U'(7/iVi»i,v    . 
Ilooley  V.  Iliittim 
Ex  parte  Pye 

Note      .... 

Chirk  V.  Heicelt    , 

Dewitt  V.  Yates     . 

Coventry  v.  Chichester 

.•^D.MINISTRATION  Ol"  A.SSK.I  .■^  — 

Duke  of  Ancasler  v.  Mayer 
Note     .... 


Ma1(8!IALLIN<)  Asskt.s  — 
Aldrich  v.  Cooper 

Note     . 

EtJl'ITAIlLE  MoItTOAOK.S  — 

liussell  V.  Ilussell 

Note     . 


,  5t;, 


48 

4H 

4!t 

.50,  51 

.   50 

52 
52 
63 
53 
54 
57,  58 
50 
56 
58 


69 

5'.»,  (iO,  (il 


(i2,  t!3 

.   04 
64,  Co 


viii 


CONTKNTS. 


Tknancy  i\  Pmmmuv  —  "  K<)r\i.iTY  is  F.ijiity"  — 

I.itke  V.  (iihum   .         .  • (!)l 

Lakf  V.  Cradilock ct; 

•Verc (iC,    (17 

Miirliij  V.  /y/;-!/ (Hj 

PeNALTIKH  ANMi  FoUKKII'lHKN  — 

SUimitn  V.  11' //^cr       .         .         .         ,         .         ,         ,         ,       fl8 
Pi'itrhiij  V.  Diikiiif  Siiiiurmt     ......       (ill 

A'l'ff C'.t,   70 

CoNTKIIir  1  ION  —  "  K(jr  All  TV  is  KutlTY  "  — 

Derintj  v.  A^'ir/  «/  \VinchtUni 7i 

A'ute 71,  72 

MAURIKl)   WOMKN. 

Makkiko  Wt)MKN  — E(jt;iTY  TO  A  Sktti.k.mk.nt  —  "  Hi:  WHO 
SekK'S  KvjriTY  MIST  no  Kijitty  "  — 

/.'((/.'/  KHhnnk  v.  Mcntolkii 73 


74 
75i  7B 


Murnjij  V.  Lnrd  EHhank 

.V"«e 74, 

MaKUIKI)  WoMKN-  —  HKillT.S  AMI  LlAllll.lilKS  AS  To  Skfakatk 
ESTAIK  — 

,f(i(}net<  V.  Methodi.Ht  Kinsoipul  chnirli       ....  77 

Atitfiddint  Epitriipal  Churrh  v.  Jiv/iie:*       ....  77 

.\"te •*    .         .  .         7H,  7i> 

Mahuikh  \Vomi..n  — Ski-ahaik  Kstatk  a.m>  Hi.>ri(AiNT  i'i-on 

ALIK.NAriON  — 

Tulli'tt  V.  Armatronij 80 

Note tiO,  81 


ACCIDENT. 

L0.SS  OF    DocrMENTH  — 

Lawnnre  v.  Lmrrence 

.V..<« 

iMPEKFErT  KXECfTION  OK    I'oWEltS  — 

Toilet  V.  Toilet  .         .    *     . 

\ote 

Powers  Coci'i.kd  wmti  Tutsts  — 

Withers  V.  i'tadun 88 


.       82 
.      82,  83,  84,  85 

.       86 

SC,  K7 


Ac 
Ml 


Ml 


Hi 

Fi 

Fi 


CONTKNTS. 


IX 


lit; 

(!(!,   r,7 

<;«> 

I'.H 

611,  70 

.       71 

71,  1-i 

'Hk 

WHO 

73 
74 

74,  7"> 

7ti 

Ski'ahatk 

. 

. 

77 

77 

7K, 

7l> 

INT  I 

'l'(»N 

• 

80 

» 

80, 

81 

. 

. 

h:> 

82, 

M 

84 

85 
8ti 

, 

8f!, 

87 

.       88 


AdlDBNTAI.  Fuun-initKs  — 
Il)»tieick  V.  StUe» 

\(  I  IHI'.N  I  Al.  I'KN  U.IIKH  — 

Ji'nt»  V.  Li'wii   .... 
Note 

MIST.VKK. 
Mill  iKKs  OK  Law  — 

Hunt  V.  Ii<iH.imiini>Tf 
hmmluwiti'  V.  LuiiKilownc  . 
Stdpleton  V.  St'ii^ti'ton 
Gordan  v.  Wordon       .         . 

Note 

Tijsdn  V.  Tijson    . 
Wfntnj  V.  Wt'ntvij 
Mhtakkh  oir  Fact  — 

Broxen  v.  Lamphtnr   . 

Note 


I'A.iK 

81) 


.      !>2 

'.'2,  \v.\ 


04 
1)5 
06 

m 

07,  08 
07 
0» 


00 
100,   101 


FK.AUI). 

('iiNTKA<T'l  IN  UKSTKAINT  OK    MaHHIAUK  — 

Miiddur  V.  Maddox 102 

UAiKiAiNs  WITH  Hkikh  — 

Chesterfield  v.  Jans  sen 104 

Note 104,  105,  lOii 

Nefill  V.  Smiling 105 

Baroai.vs  Bktwkkn  Pkksoss  iv  Fiditiaky  [{r.i.vriov  — 

Iluguenin  v.  Baaelfj 107 

Nute 107.  108 

FkaL'DS  UPH.N  CUKDITUItS  — 

Sexton  V.  Wheaton     .        .        .        .         .        .         .         .100 

Note .         .110 

FltAl'DS  ITI'ON   MaKITAI.   RlUHTM  — 

Countens  of  Strathmore  v.  Bowes  .         .         .         .Ill 

Note 112 

Taylor  v.  Pit'jh 112 

FlUUDS  ON  PoWEItS  — 

Aleyn  v.  Belchier IIH 

Note U3,  114 


CONTEXTS. 


Bona  Fiuk  Pikchaskus  — 

lianset  V.  Xoswortfiy  . 
Nule     . 


81'KriFIC   I'KUFOHMANX'K. 


Not  Gkseually  Dki  kkkd  uk  Ciiattkls  — 
Cuddee  v.  Butter        .... 
AKrici.K.s  OK  Si'KriAi.  Vai.ii;  — 

PUHI'IJ   V.  PUfKIJ 

Duke  of  Siimerset  v.  Oordun 

Xot» 

riiillipn  V,  Birger 
Fells  V.  licfil 
Duncuft  V.  Athrerht 
litutoil  V.  Lister   . 
CoNTR.vcTS  Rki.atino  K'  Kkai,  I'HOPI.IHY  — 
Settm  V.  Slude    ..... 
Lester  v.  Foxcroft      .... 
WoolUvn  V.  llenrn      .... 

Note 

WiiKN  Specific  I'khfoumanci:  nui  I)i;(  iskkd 
Dod»on  V.  Swan         .... 
Note 

JUKISDK  riON  OF  ElJllTY  —  "  Ivitri  V  .\(   IS  IN 

Penn  v.  Lord  Haltimare.    . 

A\ote 


.     11.5 
.     115 


IIH,    11 


nil 

11.S 

118 

»,   V20 

11 ;» 
no 
lilt 

120 


.  121 

.  121 

.  122 

122,    1215,  124 

.  125 

.      12,),  12(1 


I'DIJSIINAM  " 


.       127 

127,   128 


:  NriSANf-K  ! 

Cum 


INMUNCTION'S. 

En.IOINI.NC.  PllOCEEI>IX(i.S  AT  I. AW  — 

Marine  Ins.  Co.  v.  ILidijuon       .         ,         .         . 

Note . 

Earl  of  Oxford's  Cane  . 

IXJUNCTIO.V  TO  RkSTKAIN  VIOLATION  OF    ('llNTHAt•T^ 

Steward  v.   Winters 

Note 

Kksikaimng  NrisANCF.s  — 

St.  Helen's  Smeltimj  Co.  v.  Tippinij  . 

Note 


, 

129 

i;io, 

i;n 

i:!0 

132 

ia;j, 

131 

135 

. 

137 

CONTENTS. 


XI 


PAOK 

,     115 
,     116 


.     116 

118 

118 

>,  ii'o 
iiy 
no 

119 
120 


.  121 

.  121 

.  VJ-> 

,   ll';5,  124 


.     127 
127,   128 


VM\ 

VM 

V.\0 

132 

laa, 

134 

135 

. 

137 

PlIU.IC  Nt'ISANCE  F.N.f<>lNI.I)  IIY  KijriTY  — 

llitmilton  V.  IVhitn'ihji' 

Note. 

NllSANTK  FUOM  NoXIOfS  V.vrORS  — 

Campbell  v.  Seaman  .... 

Xote 

Peck  V.  Edler 

Nuisance  fkom  Noisk  — Bf.li.s  — 

Soltau  V.  De  Held      .... 

Xute 

llarrison  v.  St.  Mark'st  Church 

NuisAXt  K  FUOM  N(>if*K — Imvuoim-.u  Usk  — 
linidcr  V.  SaiUard      .... 
Note     .  .... 

Ball  V.  Rail  .... 

Ntl.HANC'K  FUOM  NOISK  — PllolMCU  I'si; — 

Puid  V.  Coleman        .... 
No  TuADK  A  NrisANc  E  Pek  Se  — 

Catlin  V.  Valentine     .... 

Note 

Arniit  V.  Broirn 
Flint  V.  liiissell    . 

Nl'lSANCB     MAY      HE     DiSAOUEEAIlI.K     wmiolT 
FIL  — 

Walter  v.  Seljv  .... 

Note 

Dennis  v.  Eckhardt 
Cook  V.  Furlies     . 
CoMiNd  TO  Nuisance  — 
Brady  v.  Weeks 
Smith  V.  Phillipii        .         .         . 

Note. 

NrisANiE  — LENftiii  OF  Time  I.mmateui 
Ross  V.  Butler    .... 

Note 

Com.  V.  Gallagher 

l.NFHINltEMENT  OF  PATENTS  — 

Vahhcell  v.  Vanvlissenyen 

Note 


1!f! 


138 

.  138, 

131> 

140 

HO,  in, 

142 

• 

142 

143 

.  144, 

145 

• 

US 

•        • 

140 

.  147, 

148 

,        , 

148 

.  149 

.  153 

.     154,  li)5 

.  ir.4 

.  155 
i    HruT- 


.  150 

157,  158 

.  157 

.  158 

.  169 

.  160 

.  161 

.  162 

.  163 

.  163 

.  164 

1C5,  166 


Xii  CONTKN'TS, 

Li  1 EUARV  Piracy  — 

Prinre  Atf'prt  \.  Stran'je l"' 

Foltom  V.  Marsh 1'" 

Note I<i8.  1"^ 

Martinetti  v.  M<ujuire  .         .         .         •         •         ■  1'"* 
TRAnK-M.vKKH  — Family  Namk  Uskd  to  DKCKiVE  — 

Croft  V.  I)(i>) 170 

Trm>k.-Maiiks  — No  ItKi.iKK  TO  Wrong-Doer  — 

Seatiuri/  V.  (rrii.ivrnor         .        .        .        •         •        •         .  lil 

Xote     .  I'l.  '"->  '"•' 

MrAi>dreip  v.  lianstt ''- 

Maj-inll  \.  Il'Kjg 1'- 

Youn'j  V.  Marrae 1"- 

Brnhiim  v.  Bustard l^-' 

TuAnK-MAUKs— Family   Name    Used  wiiaooT  Intent  to 
Dkckivf, — 

Menfphj  v.  Mi'iirebj ^"^^ 

Sole '     .  175 

Statkmkxts  as  to  Foumkh  Kmployment— ' 

Ghnny  v.  Smith ''*' 

S<'tt 177,   178 


PART     II. 

CONSTITrnONVL   CASES    SIMPLIFIED. 

(HAin'ER  1.— OKNERAL  PRINCIPLES. 

riK:.Ki<M.  Limitations  in  Constitition  do  not  apply  to 
TiiK  Spates  — 

Barron  v.  Mni/or  of  linHimnre 

.Vote !«-'.  '«3'  1«* 

Implied  Powers  — 

McCnllouqh  v.  State  of  Maryland 188 

.Sott ' 186,  187 

Martin  v.  Hunter's  Leasee 186 


181 


CUNTKNTS. 


XI.  1 


VACK 

.  167 

.  10)7 

.     I(i8,  lt!9 

.  168 

.     170 


rHAlTKU  II.— TIIK  POWKU  OF  TAX.VTION. 


171 

171,   17L', 

17:1 

, 

172 

, 

172 

,                    , 

172 

173 

rKNT    TO 

174 

•     '      • 

175 

17f. 

.      177 

178 

FIED. 


Al>l'I-V    TO 

181 

1H2,   183, 

184 

186 

.     186, 

187 

•                   • 

186 

ExtKNi'ii-    iiikTamm;  1'owku  — 
I'ruvidiiire  Hunk  v.  /Hlliiiijn 

Xiito 

.S'f.  l.niiis  V.  Firi-'i   C". 

T.»x  Mrsr  iiK  Fciit  I'liiLic  I'chi'usi-; — 
LiKin  ^{ssiiriiitiim  v.  Tupeka 

Xn!e 

Ldirill    V.   lldStdll   . 

Stdti'  V.  Ontnckic  T/i.    . 

\\'ir.\T  AUK  "  DlUKt  I   T\.\KS  '"  — 

llyltdii  V.  r.  S 

Note 

Piirijic  Int.  Cn.  v.  Smtle 
Veazie  Hank  v.  Fcnno 

SlAlK  DlTIKS  ON  iMroltTS  — 

nrown  V.  ,'<t(ite  of  Munjland 

Xote 

S  lA  IK  DCTIKS  ON  "  EXVOHTS  "  — 

.•I/»i;/  V.  ,Slate  of  Califurnin 
Woiiilruff  V.  Parhfim  .... 

Xote 

Statf.s  Cannot  Tax  Fkdkkai.  AoKNriK.s  — 
McCnIlorh  v.  State  of  Mnrijlnnd 
Ddhliiri.i  V.  Commisiiionir  of  Eric  Co. 
Weston  V.  City  Council  of  Charleston 
Crandall  v.  State  of  Nevada 

Note 

Umtki)  Statk.s  Cannot  Tax  Stati:  Aoknciks 
Colli'ctiir  V.  Day         .... 

Note 

Warren  v.  Paul    . 

Dl'TY  OK   TOX.NAOE  — 

Cannon  v.  Xpw  Orleans     ... 
Packet  Co.  v,  K-'okuk 

Xote 

iSt.  Louis  V.  Ferry  Co. 


18'J, 


I-AOE 

188 
liiO,   191 
11)1 

102 
11)2,   I'.tS 
11»3 
lit3 


1!).') 


194 
19(; 
19.5 
195 

197 
19;< 


199 
200 
200,  201 

.  202 

.  203 

.  203 

.  294 

.  205 

.     20fi 

20*;,  207 

.     207 

.     208 

.     208 

209,  210 

.     210 


\1V 


(  ()\  IKMS. 


CllArTKU  III.    -TIIK   1")\VI,I{  TO   li«H!Ki)\V   MoNF.Y. 

.     -Ml 


Craiil  V.  .S'Mf'' '/  MissuKri 
JUiisr"f  \ .  /i'Ui^  "/■  li'iitiicKii 


CllAlMKH    IV.  — Tin;    I'oWr.H    T<.    UK«.l"LAl 
Co.M.Mi  i;<i;  C.vNNni  111    Kii.ri.M  1  i>  in    Mil    '^l  M  !>  — , 
(iihUnnn  V.  Ojd'  n 

The  l'<iKfiii'.l<r  CitsiK  .  .  .  ■  ■  ■ 

State  of  1'e.iintiiih'iiiiin  v.   UVii./n/;/  Undiir  (.".  . 

KxiTi'i  \-(  ri>  I. Ill  VI   Ui  r.ri.A  I  i<'N>i  — 

Ciiutfi/  \.  I'liit  W'.intms 

Wll.VI    IS  "  ('()-\t\ll'.U(K  "  — 

I'init  \  .    Mriliidit          ...••• 
y.'ti 

WlI.M    IS  C'llMMI m   I     ".AMO.M;  "    IHl:  SlMl  : 

Veaxii'  V.  Mniii- 

A'.'^; 

('.  .v.  V.  Dtwiit 

COMMKIICK  AND  TllK  I'nl  I*  I     l'"\Vi:il  — 

Citij  of  AVic  )'•■/■*•  V.  .V(7ii 


COMMKIU'K. 


.  LM5 

.  -I'i 

.  1.M8 

:'il,    L'UM,  L'L".' 


A  (iKANT  FKiiM    nil-   Si  \IK  is  A  CoMI!^"   1 
Flttchrr  V.  /V{/»  .  .  .  • 

Note 

Bcr  Noi  Prime  (»i  kh  ks  — 
Butli-r  V.  I'mnsijlvaiiin 

Note 

A  LirKN.SK  Nnr    V  CoMKACr  — 
Stone.  V.  MisKhfii'/ii    . 

Not.' 

CHAltllHS  TO  I'lilVATK  r<)l!l'>)lt\ri()\><  — 

Dartinoulli  Collnje  v.   Woudivitrd 
riantir.*  li'ink  v.  Sharp     . 

y,  te 


225 

2-'5 


y,,,„  22t;,  227 

('IIAITKK  v.  — rUdl'KUTY   lUCHTS. 


.    228 

228,  22<» 


230 
231 


.    283 
.     233 

.     234 

.     235 

235,  23G 


CONTKNTS. 


XV 


MONEY. 

.     211 
.     '-'12 

.    lm;'.,  ■_'!* 
( OMMEKCE. 

.     LM5 

.     -I'l 

.     -17,  I'lH 

.     '-'18 


. 

219 

i;i;o, 

L'lM, 

222 
22:< 

• 

i!L';i, 

224 
224 

22,-) 
225 

, 

22*;, 

227 

,        , 

228 

.  228, 

22',l 

230 

231 

232 

233 

234 

236 

,  235 

,  23ti 

rot.l.ATKKAl.  Slii'll.vliiiN-^  i\  I'i;[V\ri-  ClIAKlKltS  — 

(Uinhii)  V.   T/if  Ajiju-nl  T'l.r  ('mirt      .....     237 

}V<ii/ilrHff  \ .  Trajiiiiill  .......     238 

^ote L'.i:',  210,  241 

C'oNrH\<  TS  NOT  iMI'l.ir.li — 

Chnrleit  lih-i  r  litidji'  v.   Warrfii  liridijr     .         ,  .212 

» 1  - ,  >  1 .1 


Note 


St'ltr    \.   IliV.iH 


Note 

MrMcii'vi.  r<)nronATi<»\.i  — 

Kant  Iliiit/iinl  V.  Ihtrtfiinl  liriilgr  Co '>ti 

214,   245 

245 

What  Lv\v>  Imi'aiii  riii:  <  )iui<n  ri,..v  ,,|,  (■,,<,,  „^,,^  __  |^..^,„, 
VKNT  Laws  — 

Sturijfx  V.  Criacmnshidd  ......  '>^f\ 

^^'"''' 21(;,   217,  2H,  L'l:i,  2.10 

liniten'Hirli  v.  Jiuah 24.) 

McCnmirk  v.  Hush      ......     24'.> 

Laws  in    Fokci;  at   the  Timi:  ov   (-dn  i  kaci  _  Domhii,  ok 

CUEHITOli  — 

Oijilen  V.  S-iunihi-H 

Baldwin  v.  //ii/c         ...... 

A'o<« 


SXATfTrS  OK    Lt.MIIAIION  — 

Terry  v.  Andcnon 

Not'' 

.\Hoi.isiirN<;  iMriiiso.MMK.Nr  koi;  Dmir 
Miisiin  V.  Hiiile  .... 

A 1' P I!  A I S V. M K NT  I, A \V S  — 

linmsun  v.  Khisie 

E X K M I'l- 1 0 v  I, A w s  — 

Edwnrd$  y .  Kcnrzy 

Note     ..... 

Eminent  Domain  -- 

West  Hirer  UriJrif  Co.  v.  J5<>     . 
Note 


.  251 

.  251 

252,  253 


.  254 

.  255 

.  25fi 

.  257 

.  2(;o 

2ii(),  261 

.  2fi2 

202,  2G3 


XVI 


CONTENT.s. 


CHAPTKK  Vl— TIIK  I'OLICK  POWKK. 

PuoTI'tTION  OK    Vl  Bill-  IlKVI.TIl  — 

The  SUiw/hter  llousf  Cimeii ' 

.Vote *  . 

Thorpe  v.  lintland  H.  Co -  '" 

Poi....:  PowKU  UKsii.Ks  IN  Tin:  SrvrK.s - Poweus  or  Con- 

•  iHK.SS  —  .,^.^. 

United  Statea  v.  Df^citt ,.","., 

iVcte     ,..■••• 
Mrsr  NUT  CNKLicr  with  Naticnai,  Rights  -  ^^^ 

Railroad  C".  v.  7/i(.-i('H "^  ^^ 

Cfty  Aiu-r/  V.  Fre<'man ^^^    "^'^ 

AV(8 ' 

Apmission  to  Tin;  Bar—  ^.^^ 

Jiradwrll  V.  .SY(i('' •    -' 

Note '^'-'  -^ 

Corpokations  —  .^^^ 

Paul  V.  ri>(/irjia 

iNTOXICATINO  I.ICJfOKM—  ^^. 

fiartemeyer  v.  /oioa "^^ 

ifc^r  Co.  V.  M.i»mc!.nselt» •     _^;.^ 

:,~o(e "*•'  -'^ 

Regulation  ok  RAii.»OA:>a  — 

Railroad  <'...  v.  Fuller      . ^ 

Note 

Regulation  or  Chakoes  — 

Pfik  V.  Chicttijn,  etc.,  R.Co -°" 

Chieago,  etc.,  R.  €■.>   v.  Iowa ^°^ 

Munn  V.  7«mOM .^^^ 

J\r<)<e 

CHAPTKR  VII.— MISCELLANEOUS  CASES. 

«•  Div.  Pu.KKs.s  of  Law  "  -  "  L.aw  of  the  Land  "  - 

Jturra>rK  Lw<"y.IIohokrn  Land  C''.       •         •         •         '     'l^. 

■^T  .  .         .         •     2So,  /oo 

Note • 


rONTKNTS. 


XVll 


I'AOK 

2('.4,   -'115 


V    CuN- 


, 

2(1(5 

260, 

2(17 

268 

, 

2tl!> 

270, 

271 

272 

27->, 

273 

.  274 

.  276 

.  275 

276,  277 

.  278 

.  279 

.  280 

.  281 

.  282 

.  283 


SES. 


.     285 
285,  280 


*' Kx  I'osr  I'u  ro"  Laws  — 

C<ilil<r  V.  /lull     . 
Xote      . 

Slil's  V.  Sliite 
Jlmul  V.  (  om. 
Hurt  V.  Stntf 
t'^talf  V.  Mmiuinij 
Stale  V.  Cornon 
Com.  V.  //((// 
Doicling  v.  .SVnte 
Sloki  s  V.  People 
Gut  \.  Stale 
Kriti'i  V.  State 

"TwtCl-;    IN   jKOPAIillV  "  — 
r.  .V.  V.  Perez     . 
A'ote    . 

"Cm  T.t.    AM)    UmsiM     I'l  M>| 

Wilkemon  v.  Utah 
Note     . 

llo  Ah  Jiutr  V.  Xl 


mi: MS  ' 


nan  . 
b 


PAOB 

.  2H7 
2S'.»,  2i(0 
28!l 
28!) 
28!) 
289 
289 
289 
289 
289 
2'.(0 
290 

.     291 

2;il,  292 

.    298 

293,  294 

.     294 


i^lMM 


TABLE  OF  OASES. 


Ackrnyd   ''■  Siuitlisoii 
AMiicli   c.  (  (iiipci- 
Ak'yn    '•.   Hi'lfllilT 

Aliiiy  '••  Si:itc  (if  ('aliforiiia 
Aiitri)liiis   c.  Siiiitli 
AsliliunuT  '•.  Miicsjtuiio 
Ariint   '•.  llrowii 

liiiMwiii   r.  C'iiiiiptiolil 

IJaldwiii   r.  lliile 

Hall  r.  Ix'mv 

nniroii  /'.  Tlio  Mayor  of  Ualtun 

Uartfiuoyor  v.  Iowa   . 

Hassi't  I'.  Noswoithy  . 

Ik't'i-  Co.  '■•  Mas^acliiisi  Us 

Bland  c.  -Mayo  . 

Blaiidy  /•.  Widinore    . 

Bostwick  '•.  SliU's 

Brad  well    r.  State 

Brady   r.  Weeks 

Brahain  r.  Bustard     . 

Breiteiiba<'h  c.  Bush  . 

BilfC   *•.  Stokes  . 

Briscoe  c.  The  Bank  of  Kentue 

Broder  v.  Saillard 

Brodlo  V.  Bairy 

Bronson  r.  Kinzio 


re 


r.voE 
11 

■  '<-2 

11  ;i 
I'ji) 

;) 
•">2 

!:•■ 

10 

2r)i 

MH 
ISl 
27.) 
11.'. 
-'75 

;i2 
i« 

8!) 
•J72 
\'}'.< 
17.J 
•2VJ 

21 -J 

IKi 
11 

2r)7 


(xix) 


■i 


XX 


■vwwa:  ok  (Asr.s. 


Brown  »•.  Lsunplunir   ,         .         •         • 
IJrowu  r.   riu'  StMti  of  Miiryhiiul 
HuthT  '••  rt-nns.vlvii,iiii 
IJuxtoii  r.  LMff         .  .  .  • 

CiiMor  '•.  Hull 

Culilwi'U  r.  ViuivliMson<icii 

("iimptK'U  '••  Soaiuan  .         •         •         • 

Cmiuon  >'.  Ni'W  Oileaiw      . 

Ctttliii  ('.  VaU'iitiiic     .  .  •  • 

(MiaiK-ev''*  t'ii«*' 

("harU-H  UiviT  Hri<lp>  r.  Wanrii  Briaj,'e 

Cliestt'ilu'lil  '••  .laiisstMi 

Clik-ago,  liurlington  and  «iiiini'y  H.  ('<)•  '•• 

Chy  I-inifjj  '••  Kivcuian 

City  uf  New  York  c.  Miln 

Clark  r.  SowoU 

CoUoctor  I'.  l)!>y         •  •  •  • 

Com.  *'.  (iallafTlier      .         •         •         • 

Com.  r.  Hall 

Cook  I'.  Forbes 

^  Coolcy  r.  Till'  Port  Wardens      . 
Cooi)er  >•.  Cooper       .         .         •         • 
("ountess  of  Strathmore   r.  Bowes 
Coventry  v.  Chicliester 
Crai<;  '•"  The  State  of  Missonri  . 
Craiiilall  i:  The  State  of  Nevada 

Croft   r.  Day 

Cnddee  v.  Riitter       .         .         •         • 

Dartmonth  College  v.  Woodward 
Dennis  ''•  Eckhardt    .         .         •         • 
Dering  v.  Earl  of  Winchelsea     . 
DeWitt  V.  Yates         .         •        ^^      / 
Dobbins  o.  Commissioners  of  Erie  Co. 


owa 


I'AIIB 

It'.t 
lit? 
'2'M) 
120 

287 
KM 
110 
•J  OH 

isa 

M 

242 
104 
281 

2r);) 

225 

5G 
20r, 

it;;5 

2H!) 
158 
218 

45 
111 

5H 
211 
204 
170 
IIG 


lla 


TAIll.K   ItF    (  .\M:s 

Dodanii  r.  Swan 

Diiwlinjj  c.  Stiilf 

l)iiilli'y  I'.  Hiiclu'liltT  . 

I)iiUt'  <if  Aiiciistt  r  r.  Mayor 

1)  ikc  (if  Soim-ix't    r.  ('(inksini     . 

l)iiniiift  r.  Alliiftlit   . 

\)\vv  r.  DyiT     .  .  .  • 

Karl  of  Oxford's  (aso 

Kast  llartfonl  ''.  llartfnnl  HiiiljifCo 

Kihvanls  >'.  .Iniics 

Kdwaids  r.  Koni/.y     . 

KUiot  V.  Mcrryiium     . 

'•'llisoii  )•.  KUisDii 

Kflls  r.  Hfod      .... 

l-'ll'tclllT    '••    AslllMinilT 

Kk'tcliLM-  ('.  Pock 

Flint  r.  RiHsHt'll  .         .         .         ■ 

Folsnm  )'    Maisti 

l'\)\  V.  !\rackrotli 

GHibons  *•.  0<j(len 

(ilcnny  r.  Sinitli 

riordoii  V.  rionlon 

Cordon  r.  The  Appial  Tax  ( Ourt 

Oonrlcy  v.  Linseiiltislor 

Greene  v.  Greene 

Gut  V.  State        .... 

Hamilton  v.  AVhitridse 
llanling  v.  Glyn 
Harrison  r.  St.  Mark's  Church  . 
Hart  V.  State      .... 
Hawkins  v.  Blewett    . 


XXt 

I'AliK. 

r.i) 

IIH 

111) 

14 

130 
244 

:i7 

260 

27 

8 

119 
.19 

228 

Ij).'. 

If '.7 
25 

21.5 
I7t; 

!»»; 

2:n 

:?7 

12 
290 

i;i8 

11 

iir> 

289 
38 


XXII 


TMM.i;    nV    (ASKS. 


II. >  Ah  \\'>\\  >■.  NiiiiMM 
llni.lfV    '■■    ll:ill"ii 
IliimifiiiM     ■.  Il:i-.il>y 
limit     '.  Ki>ii-.iii:iiii(  II' 
Ilyll'iii   <•.  I'liilfl  >t:itfs      . 

,I:l.U^uii    .'.   I'liillilH      . 

.1:1. jii...   /•.   Mcthci'li^.  i;|ii'^'"i.:il  ( 

.InllfX    I'.    Ll'NVi-*    . 

Jimt's  ''.  Sclliy   . 
Kc.cli   '•.  Siiinlt'iiril 

l/ikc  '•.  ('i:ulil(i<'k 
Liiko  '•.  (ii'i-^'iii . 
l.;uiHili>«'nt'    '•.   l.:m-.iliwiH'  . 

|,;iily    l-:iil':llllc     '•.    Mnlltolicll 
I,;i\Vli'll<i'    ••.    l/iwr.  lire 
Lc.llllK'IV    '•.    Ivill  nf    ('Mlli-lf 

Lt'stiT  '••  K'lNrrofi 
LuTiisi'  Cii-M'-.   riic 
Loan  Assnci!<tiiii   ''•  'I'o;  >'U;i 
Loi-il  Clfiinrcliy   '•.  Hiisvil'.e 

Lowell     /■.    r.o'^toM 

MiicUri'ili  '••  >yiiiiiioii-i 

M;i<liiox   '••  Miitldox    . 

M;ml.y   '•.  Scott  . 

MmiIiu'   In-.  Co-  '••  Ho'Il'sou 

Martin    r.  lliiiilrr's  Lc-scc  . 

Mantiiii'tti   '■.  .M.i'^niiT 

Mason   '•.  UaiU'  . 

Mavoi-  of  (iloiiicstrr  r.  Wooil 

Miixwi'll   r.  IIo<j;^f 


MCl 


•-'(• 


:i7 


TAllI.i;    <»l'    <  ASIS. 


will 


1  (• 


IW\ 


Mi'iu'i'l.v  *'.  M.iicfly    .  .  .  . 

Mj'tlinili-t   K|ii»«M|,:il  (   liuirli    -•.  ,I:i.|lli's 

Mil,.-*  '•.   Still." 

Mr, III"    c.    I>:nlnu 

Mmii  V   '••  Hiiil  . 
Miiim   c.  lUiiini^ 
.Miirniy  c  l.^i'l  Klil'tnik     . 
.Muiriiy'H  l,i'->fc  r.  lliitinlMii  I,, I 
McAiKlifw  '•.  15:i~><t  . 
McCi.nnick   -■.  Ivn-li    • 
/McCiilli'fli  '•.   Till'  Miitf  "f  M:irv 

Nfvill   '•.  Snclliiii,' 

(  )j:.1cii    r.  Siiiiiiilcr-t 
Olivir   c.  r.iicKliiiiil     . 

I'licilic  IiiH.  (.'<!.  r.  SmuU'     . 

I'ackit.  ('i>.  c.  KcnKiilv 

l';i-.-.(Mi'_'ir  (';ist"i.   I'lif 

raiil    '•.  Vii'^iiiiia 

IVaclii'V   '■•  Diiki'nl'  SDmiTsct 

l',.(U   r.  Killer     . 

I'clk    r.  ChirM^o.  ftc.   IJ.   Co. 

IViiii   ('.  Lmd  lialtimnn' 

riiilli|H  V.  UiTiffr 

IMaiitcr>  ISaiik  -•.  Shur]) 

1*111)1   r.  Ciilciiian 

I'riiK  ('  AiluTt  '•.  StraiiLTc     . 

I'l-dviiliMico  Hank   r.  Hillin'j:-^ 

I'ust-y  '•.  I'liscy  . 

I'yi'.  Kx  paitf     . 

{{ailroftd  Company  c  FuIKt 
Uailniail  ('iiiii|)aiiy   ''.  Iliiseii 


IM 


1  \i.K 

17» 

mm 

1 1 
:i7 

71 
17l' 

•jr.  I 

JO-' 

105 
251 

i!i;. 

•20H 

•2\''> 

,  -.'71 

I'.'.l 
I  12 
•.'SO 

r.'7 

I  r.i 
•J  ■>.■) 
I  r.i 
n;7 

IMS 
1  l« 

54 

•278 
268 


XXIV 


TAHI-K    OK    CASKS. 


Kaud  r.  Coinmoinveultli 
IJichurtls  >'.  Dflhridfio 
Kobiiison  /'.  IVlt 
Ross    '.  Uiillrr    • 
Kussi'U   '•.  Hussell 


SivU'   r.  Moore    . 
Si'iiliun'  )".  (irosvfiior 
Scton  r.  Slaile    .  ■  • 

Soxh)n  V.  Wlu'iitoii     . 
Sliolli'y's  Ciise    . 
Slaughter  IIoiisi-  Cases,  Tl.e 
Slonrm  /••  Walter 
Smitli  V.  Laiiiptoii 
Smith  r.  riiillips 

^'lle(.•Unel•  v.  'I'aylor     • 

Sollaii   r.  He  Held 

St.  Helen's  Sineltin;;  Co.  ''.  Tippmy; 

St.  Loviis  '-.  The  Ferry  Co. 

State  V.  Corson  . 

State  f.  H alien   . 

State  I'.  Mannin;j: 

State  r.  Osawkee  T\).  . 

State  of  rennsylvania  r.  Wlieelin-r  Bridge 

Stapleton  c.  Stapleton 

Steward  ''.  Winters    . 

Stokes  r.  People 

Stone  (•    Mississippi    . 

Slron<i  V.  Wi'lianis     . 

Stur<ies  »'.  Crowninshield    . 

Talliot   .•.  Duke  of  SluH-wshiir 
I'aylor  r.  riisj;li .         •         • 
Terry  ''■  Anderson 
Thorpe  c.  Rutland,  ete..  K.  Co. 


IM, 


■iMi 


TAIU.K    OK   CASES. 


XXV 


21: 


ToUct  c.  TolU't  . 
Townley  *'•  SlaThoriio 
Tullott  V.  Armstn.ii'j;. 
'rvriTl's  (':iso     • 
Tvsoii  ('.  Tyson 

I  iiiti'd  States  /•.  Di-witt 
I'Miti'd  States  r.  I'oriz 

Vciizio    I'.    yinDY  . 

Vi'uzif  liaiik  r.  Fi-min. 


Waclsworth  r.  Wimlcll 

Waller  r.  Selfe  . 

War  I  r.  Turner 

Warren  v.  Paul . 

West  Uivi'i-  Bridfro  Co.  r.  I)i> 

Westhy  '-.  Westliy      . 

Westun  I-.  City  Comieil  of  Cliar 

Wilhanks  r.  Wilbanks 

Wilcoeks  i\  Wilcooks 

Wilkor^on  r.  Utah      . 

Withers  c.  Yeadon      . 

Woodruff  c  rarhani  . 

Woodruff  r.  Trai)nall 

Woollani   r.  Ile.irn 

Wynne  r.  Hawkins     . 

Yallop.  Ex  parte 
Young  f.  ]Macrae 


est( 


1 

U7 


221.   2^)0 

■2\n 

223 

I'JO 

8 

\->r, 

•6C, 
207 
2fi2 

98 
20;? 

n 

48 
21)3 

88 
200 
238 
122 

12 

16 

172 


PART     I. 


i^ouiTY  Cases  Simplified. 


■■0 


E 


1 

tun 

tun 
a  IK 
(2A 

1 

(.all 
fsU 
ver; 
ba( 
Stat 
lira 
nisi 
wei 
btti 


BB&i 


EQUITY   CASES   SIMPLIFIEl 


UHES  AND  TliUSTii. 


TYRKEL'S  CASE. 


[Dyer,  155ii.] 

Jiinc  Tyrrel,  wiilow,  was  the  lioroino  of  this  impor- 
tiuit  case.'  Tlie  facts  noed  not  l)e  given  lierc,  for  it  is 
>uflaoioiit  for  the  student  to  remember  only  the  impor- 
tant principle  it  decides,  which  is  stated  in  nine  words, 
and  shall  ho  written  in  lar<;e  capitals,  viz. :  THERE 
CAN  NOT  HE  A  USE  UPON  A  USE. 

Previous  to  the  rei<in  of  Henry  VIII.,  when  a  very  important  law 
called  the  Statute  of  Uses  was  passed,  a  method  of  transferrins  an 
estate  had  sprung  up  haviiiR  peculiar  features,  but  grouudfd  on 
very  practical  reasons.  The  Statutes  of  Mortmain  had  prohibited 
lauds  from  beinj;  given  for  religious  purposes.  To  evade  these 
statutes,  the  lawyers  of  tliat  day  devised  the  method  of  taking 
urauts  to  third  persons  to  the  use  of  the  religious  bodies.  Tliis 
laso  wa8  very  successful,  and  became  very  popular.  Uebellious 
were  the  order  of  the  day  about  that  time,  and  somebody  was  being 
biheaded  and  having  his  estate  forfeited  once  or  twice  a  week. 
When  it  was  found  that  the  use,  unlike  the  estate,  was  not  liable  to 

(1) 


2  l,(.>l  IIV    CAM'^    MMI-I.MIKl). 

b.' fc.i-f.-ite.l  fartrr:i-,.n.rv.MvlM,rtytluil  h.i.l  laii.l  woiil  int..  the  busl- 
ness  of  lwivii.«  U.>  |.n.lK..rt.v  Hx.mI  in  this  way.  H.  wishe.l  t..  obtaia 
K  certaiu  piece  of  land.  lustva.l  of  liavin-  it  .Io.mI.mI  t..  I.i.us.-lf,  lie 
had  tl..-  d-xMinu'iit  purport  to  convey  it  to  C.  for  tl.c  use  of  U 
Thus  C.  held  ilu'  lc«al  estate,  and  with  C.  alone  could  the  courts  deal 

at  all.  ,  , 

It  was  rlfiht  here  that  the  chancellor,  the  forerunner  of  our  mod- 
rrn  courts  of  chancery,  took  a  haiul  in  the  «ame.  The  chancellor 
was  the  keeper  of  the  kin^'N  conscience,  and  what  he  didn't  know 
about  conscieuce  wasn't  worth  knowin«.  So,  in  the  case  just  put,  he 
deci(l<-d  that  this  declaration  of  use  cliar-ed  the  conscience  of  C, 
and  C.  held  the  laud  in  trust  for  H.,  and  he,  the  chancellor,  would 
protect  this  trust  estate  in  the  hands  of  C.  for  the  benetlt  of  B. 

Hence  arose  the  doctrine  of  Trusts.     The  courts  of  law  had  iio 
jurisdiction  in  such  n.atlers,  and  the  chancellor  had  plenty  to  do. 
I'resentlv,  how.ver,  another  player  came  into  the  name,  viz. :  1  ar- 
liament.'and,  bv  enacting'  the  celebrated  Statute  of  Uses,  seemed 
for  a  time  to  have  izot  the  chancellor's  head  in  chancery.     This 
statute  {■>:  llenrv  VI 11.,  ch.  lo,)  provided  that  where  any  persons 
should  stand  seised  of  any  hereditaments  to  the  use,  contldence,  or 
truiit  of   anv  other  persons,  etc.,  the  persons,  etc.,  who  had  any 
such  use,  coiiUdence,  or  trust  should  be  deeme.l  in  lawful  seisin  and 
possession  of  the  same  hereditaments  for  such  estates  as  they  had 
in  the  use,  trust,  or  contldence.     This  seemed  to  be  a  llnisher;  it 
was  intetided  to  extirpate  the  whole  doctrine  of  uses  and  trusts. 
But  the  decision  of  the  common  law  judires  in  Tyrjcl'^t  Utsv  com- 
pletelvnullitl.'.lit.     This  case  deci.led   that  there  could  be  no  use 
upon  a  us,',  i..:,  if  land  was  conveyed  to  A.,  to  the  use  of  B.  to  the 
use  of  r    the  statute  w..nld  execute  the  lirst  use  and  carry  the  legal 
title  to  B.,  but  that  it  could  not  -o  as  far  as  C.    Then  the  chancellor 
came  into  tlu'  ijame  a^ain,  and  declared  that  in  such  a  case  B.  held 
the  land  in  trust  for  C,  and  he  would  take  care  of  C.'s  estate  a«  of 
old      So,  as  remarked  by  an  able  writer,  the  statute,  s<.  far  from 
aff.'ctinij  its  object,  fjave  u  fresh  stimulus  to  the  syHtem  it  was  in- 
tende.l  to  .iestrov.     After  the  decision  in    Tyrrel's  case,  and  the 
chancellor  a«ain  stepped  in,  the  e<,uitable  doctrine  of  trusts  became 

permanent.  c..  .   .«    „# 

\nother  iiup..rlant  statute  affecting  trusts  is  the  Statute  of 
Frauds,  passed  in  the  twenty-ninth  year  of  the  reisxn  of  Charles  II. 
Hv  sect  3  of  that  act  trusts  must  be  declare.l  or  assigned  In  writ- 
inp.  Hut  implied  trusts  d*  n.t  fall  within  this  statute.  Its  provi- 
sions  have  t)eeu  adoi>ted  in  nearly  all  the  States. 


KOIITV    (ASKS    SIMPI.II  III). 


•lit  iiitDlhe  biisl- 
ivislu'd  to  iihlain 
'il  to  himself,  lie 
r  tin-  ii^f  of  U. 
il  the  courts  deal 


D<,iiiiiti<in  ../  Trii.'<t.i  —.\  trust  is  tlic  hcUfilciiU  tilli'  or  owiuTsliip 
<i(  proporty  to  whiili  liic  Icl'iiI  title  is  in  another.  The  person  in 
wiioin  the  letiiil  title  is  vest.d  is  ealleil  the  trustee,  ;in(l  the  person 
lor  whose  henelll  tiie  trust  exists  is  called  llie  cciftui  que  (runt. 


liner  of  our  mod- 

The  chancellor 

he  didn't  know 

■case  just  put,  he 

•onscieiiee  of  C, 

liaiicellor,  would 

lieiietlt  of  B. 

ts  of  law  had  no 

ad  plenty  to  do. 

name,  viz. :  Piir- 

of  Uses,  seemed 

chancery.    This 

here  any  persons 

se,  contldenee,  or 

tc,  who  had  any 

lawful  seisin  and 

itales  as  they  had 

he  a  llnislier;  it 

f  uses  and  trusts. 

'yrfiU'a  mse  cora- 

coukl  be  «a~«s< 

I  use  of  B.  to  the 

md  carry  the  legal 

len  the  chancellor 

uch  a  case  B.  held 

:  C.'s  estate  as  of 

atute,  so  far  from 

syHtein  it  was  in- 

L'l's  case,  and  the 

e  of  trusts  became 

s   the    Statute    of 

iiij;!!  of  Charles  II. 

assifjned  in  writ- 

itatute.    Its  provi- 


4 


EQUITY   CASKS   SIMI'LIFIED. 


S1IEI.I.KY'S   (ASK. 


[1  Co.  It:!!)  ] 

This  (the  p<»is  asi'uoruiii  of  the  stu(l(Mit),  like  Tyr- 
rel's  ciise,  is  more  importiint  I'or  its  rosiilts  tlum  for 
its  facts.  The  i>i'ii»''>l'l^'  which  it  aiinoiiiiccd  was  tliat 
where  tlie  aneestor  taUes  an  estate  of  freehoUl,  and  in 
the  same  jiift  or  conveyance  an  estate  is  limited,  either 
mediatelv'^or  immediately,  to  his  heirs  or  the  heirs  of 
his  body,  the  word  "heirs"  is  a  word  of  limitation, 
and  not  of  pnrchasc  ;  so  that  the  ancestor  takes  the 
whole  estate  comprised  in  the  term  ,  that  is  to  say,  in 
the  first  case,  an  estate  in  fee  simple  ;  in  the  second,  an 
estate  in  fee  tail. 

This  is  th-  hmfiuaiic  in  wliicl.  a  lawyer  (if  you  ask  him  and  do 
not  fortict  liis  fee)  will  generally  relate  to  you  tlie  rule  in  Shelley's 
Case  The  lueauiui:  of  llie  rule  is  simple  enou-h,  viz.;  that  where 
there  is  a  fift  to  a  person  and  his  lieirs,  or  tiie  heirs  of  his  body,  it 
is  not  to  be  taken  as  conferring'  any  estate  on  the  lieir,  but  simply 
showini;  or  n.arkini;  out  the  estate  thai  the  ancestor  talces.  Tlius 
an  estate  is  fiiven  to  A.  for  life,  and  reinaiu.ler  to  Ids  heirs  in  fee 
8inii)le,  tliis  means  simply  tliat  A.  has  an  estate  in  fee  simi)le,  and 
his  lieirs  take  nothing'  l)y  the  couveyancc  Itself. 

■  The  "  rule  in  Sl>ellev's  Case  "  applies  to  e<|uital)lc  as  well  as  legal 
estates  (ex<-ept  in  ease  of  executory  trusts,  for  which  see  Lord 
Clenorchv  r.  Uosville,  the  next  case);  but  where  one  limitation  is 
leL'al,  and  the  other  e.iuital)le,  it  does  not  apply.  Thus  a  grant  unto 
•uid  to  the  use  of  A.  for  life,  with  remainder  to  the  heirs,  or  heirs 
of  the  bodv,  of  A.  fiives  A.  a  fee  simple  or  fee  tail,  a.s  the  case  may 
be  and  if  an  intermediate  estate  to  a  third  party  were  given  after 
the  life  estate  to  A.,  and  before  the  limitation  to  his  heirs  or  heirs 


Kin  ITV  CASKS  siMri.irir.i*. 


it),  liko  Tyr- 
iills  tlum  for 
cod  was  that 
I'lioUl,  and  ill 
imitod,  I'ither 
•  the  iH'irs  of 
of  limitation, 
tor  takes  the 
t  is  to  say,  in 
I  he  second, an 


of  thn  l)c)(ly,  tlw  n-siilt  woul.l  1)1-  tlie  same,  subject  to  tlif  int.Tvcn- 
in;;  fxtatc ;  but  If  the  grunt  is  unto  iind  to  the  u>.'  of  A.  for  life, 
witli  rfnmiud.-r  to  the  mv.  of  H.  and  Ids  li.drs  iu  trust,  for  the  ln-iis 
or  heirs  of  Iht:  body  of  A.,  Iumv  A.  would  taU.'  l)Ul  a  life  .'state  and 
his  lieirs  or  heirs  of  llui  l)ody  would  Uikr  as  purchasers. 

So  the  rule  applies,  iilthoui,'h  there  may  be  an  Interveuiuj,'  estiite 
iHtwecu  the  Kift  of  freehold  to  the  ancestor  and  the  subsequent 
limitation  to  the  heir;  thus,  if  an  estate  is  limited  to  A.  for  life, 
and  after  his  decease  to  H.  tor  life,  and  then  to  the  lieirs  of  A., 
here  A.  takes  a  fee  simple  subject  to  tlie  interveninj;  <'state  for  life 
to  H.    The  rule  is  of  very  aucieut  origin.     ludermaur   Ld.  Cas. 


i  ask  him  and  do 
•  rule  in  Shelley's 
,  viz.:  that  where 
irs  of  his  body,  it 
;  heir,  but  simply 
sitor  takes.  Thus 
)  his  lieirs  in  fee 
n  fee  simple,  and 


)le  as  well  as  legal 
r  wliicli  see  Lord 

one  limitation  is 
Til  us  a  grant  unto 
the  heirs,  or  heirs 
11,  as  the  case  may 
y  were  given  after 

his  heir.s  or  heirs 


6 


Eyunv  CASKS  siMi-iii  iku. 


EXEdUTEI)  AXl)  KXEcrToRY  TUrSTS^ 
'^  I'JQCITY  FOLLOWS  TIJI-J  LAW." 


L,OUl>  <iLi:X<Mtt  IIV    V.    IM»SVILL,E. 

[CiiH.'lVinp.Tiillx.t,;'. ;   1  Wli.  i  Tml.   I,.l.  ('ii.«,  K«i.  I .] 

SirThoums  Por.slmll,  ii  wt-ll-lo-do  kiiij^Mil  oftlic  righ- 
tecntli  (•••iiturv,  s;it  <|(>\vi\  one  iliiy  iiiid  miidi'  his  will. 
Ill  this  (locuiiu-nt   ho   d.-viscd  the  l»uiU  of  his  real  es- 
tate to  tnistt'(w,  to  hohl   ill  trust   until  tlie  luarriajre 
of  his  jriaiKidaughter,  Aialielia.  and   when  that  event 
came    to    pass,    they  were    to    convey  it    t(»    tlie    use 
oi"  Aral)ella    for    life,  reiniiinder    to   her    luisl)aiid  for 
life,  remainder  to  the  is^u(!  of  her  hody,  with  remain- 
dor  over.      In  due  eourse    of  time    Arabella    married 
Lord  Glenorehy,  liut  the  trustees  (  Hosville  i)ein,<,'  one 
of  them)  vefused  to  liirii  over  the  property,  and  sho 
and  her  husband  were  eoinpelled  to  ask  the  aid  of  the 
Court  of  Chaneery  in  the  matter.      Here  the  (luestiou 
ivt  onee  arose,  was  not  Arabella  entitled,  under    the 
will,  to  have  eonveyed  to  h«'r,  an  estate  in  tail,  accord- 
ing to  the  rule  in  Shelley's  Case,  and  would  the  Court 
of^Chancery  follow  the  rule  of  law  on  this  subject,  and 
order  Bosville  and  his  fellow  trustees  to  convey  this 
kind  of  an  estate?     But   the    court    said    no    to  this 

question. 

"I  think,"   said  the  Lord  Chancellor,  "  in  cases  of 


i:(,>i  I IV  (•\>i:s  MMi'i.ii  II  :i>. 


tl'HTS  — 
II'. '• 


1LL.E. 

i,«.  Km.  I.] 

It  of'tlu' figh- 
Uiulc  his  will, 
t'  his  roiil  os- 
tlio  iimrriiifre 
!H  that  event. 
to    tlio    iiso 
husliiiiul  tor 
with  riMnain- 
)('llii    niiiriied 
illo  bciiiji  one 
L>rty,  and  she 
tho  aid  of  the 
:  the  (juestiou 
d,  under    the 
n  tail,  accoril- 
uld  the  Court 
s  subject,  and 
()  convey  tliis 
d    no    to  this 


trusts  executed  or  iuiiiirdiule  ilcvi^c^.  \\\i-  idii-li  uctiou 
(if  the  i'ourt>  ol  l:iw  and  ciiuily  ouidil  If  lu' the  same  ; 
t'nr  thiTc  the  lotalor  does  not  -up|"i«c  ;iiiv  othri'  con- 
vi'vanic  will  1)1'  made.  I'lUt  in  csi'iitoi  v  lru>l-^  he 
Ic.ivcs  .soinewlial  lo  lie  done  ;  llie  Ini^I^  In  lie  executed 
III    .  nioi'c  careful  and  iiuu'c  acciir.ate  inaiiurr." 

.\ud  the  cniirl  was  id'  i)|>iui(Ui  thai  a  rouvcyunee 
to  Arahella  for  liff,  reuiaiiidrr  tn  Ikt  liu-ltaud  fnr  liiV, 
reinaiudcr  to  tluir  lirst  mid  every  oilnr  >.nii,  reinaiuder 
to  their  d.iUL'hler,  W(uild  iiest  cnny  out  the  testator's 
iiitentiou  :   and  -o  they  (U'dered  this  to  lie  done. 

riiU  W  llu'  Iciiiliiii:  cn*i',  sliuwiiiii  llif  ili-iiiiirllcm  tx-twetn  ^r«- 
ruttil  aiui  exfnitiirij  tnis|<.  An  mciilxi  tniit  i^  mn'  wlicif  no 
net  is  iiec<'!4siiry  !•)  !»•  (Iniic  ti>  uiNf  rif'it  Id  it,  tUe  trust  helng 
ilimlly  (li'cliircil  liy  tli''  iii^iniini'nt  cri'iitini:  it.  .\ii  frrrHtanj  trust  Is 
wlurc  the  iiistriimciil  crciitiiiu  tin-  tni>t  i-*  liitciiilfd  to  he  pro- 
vivinim)  oiilv,  and  fnrtlnT  convfyiinci'x  iiic  ri'i|iiiiccl  to  cffci'tinilly 
curry  it  out.  Tlie  test,  as  wcil  pnl  tiy  an  miini"  '  ju(l:.;f,is  tliis: 
Has  till' tt'stiitur  l)i<-n  lii^  own  cunvi'vanoT,  of  li.ii  lie  lift  Mimc- 
thin;:  to  1>«'  (loiif?  If  till'  forniiT,  it  ix  .m  lA.cnti'ii  trust;  if  llif  lat- 
ter, it  is  an  fxciMilory  one.  Now,  Sir  Tliomas  I'lTsliail  liad  cleHrly 
left  soinctliin^  to  lie  done,  for  lii-fon-  AraHi.lla  could  i;ol  luT  prop- 
erty  tlie  trustees  liad  to  convey  it  to  lier. 

Tlie  case  also  illustrates  the  maxim,  "  K(|iiity  follows  the  law." 

ijiuity  applies   the  rules  of   law  t jiiitahle  titles  and  interests 

vtry  often,  l)nt  not  always.  In  the  e;ise  of  executed  trusts  It  doea; 
l;i  the  casi'  of  exeenlorv  trusts  it  does  not. 


,  "in  CiLses  of 


K«/l"'V    CASKS   MMl'l.ll  Ii:i>. 


IMrEHFlAT   CoSVEYASd:    MAY   COXSTITITB 

A    Th'CsT. 


WADMWimTii  V.  wi:\i>i:ll. 


[.-,  .lulms.  Vh.  I'JI.J 

A  soltlicr  ill  tlic  IJcvohitionarv  \V;ii'  wai  cntilUMl, 
l)V  virtiii'  (if  lii>  piilri'ilif  scrvicfs.  t<>  a  urinit  of 
six  liiiiiili't'd  arn-s  of  land  in  New  York  Statf.  Ho 
sold  llic  laiiil  to  Mr.  Wadswortli,  aii<l  innlcrtook  to 
luaki'  liiiii  a  (ii'cil  of  it.  But  tl)»'  vi'tcfaii  \v;i>  not  a 
pood  coiivcyainaT,  ami  tlioii^di  tiic  iii-t niiiiriil  coii- 
cliidcil,  "  ill  willies-  wlit-rt'of  1  >ct  my  liaiul  and  .seal," 
he  foiL'!"!  eiitircis  to  put  on  the  seal.  Not  willi>taiid- 
iiii:  tliat  tlii-  iiiforniality  was  fatal  to  liie  lfi:al  traiislVr 
of  till'  iiroii.i'ly,  the  cnurt  ladd  that  it  raised  a  trust  in 
favor  of  Wadswortii,  and  tlie  old  soldier's  assiinu'es 
were  ordered  to  convey  it  to  liiiii,  altlioiiirli  tliey  liad 
suliseiineiitly  pureliased  tliesaiiH'  propi-rty  thenisidvt's. 

Cdiirts  of  ffiuity  nn-  not  very  strict  in  rc(|iilriiif:  the  settlor  to 
follow  iiiiy  p:irtuul!ir  forms  of  expression,  lie  nee<l  not  even  use  the 
worils  "  tni-i  ••  and  "  trustee."  Where  the  iijireement  is  foundeil 
on  11  r^ilual'li'  ci'itsideratiim,  the  court  will  enforce  thi'  trust,  al- 
thou;:h  it  is  not  perfectly  creiUed;  iind,  iillhon^h  the  'in.st.i'.ment 
does  not  p;iss  the  title  to  the  property,  if,  from  the  (!ociiioc-:i;,  the 
conn  Clin  make  out  the  terms  iind  conditions  of  the  tri  '',  and  the 
purty  to  ))e  benefited. 

Where  the  settlor  has  attempted  to  make  a  volmUnnj  disposition 
of  his*  property,  the  rule,  however,  is  different,     lillison  u.  l-:ilisou, 


F<,>i  irv  r\'^vM  sniriii  in). 


9 


KysTlTITB 


kM«i  ciititli'"!, 

;i   Lriiiiil    of 

Sliitr.       Ik' 

iinlcrtdok   to 

III  \\;i<  lint   a 

lllllCIll      coii- 

(I  :iii(l  seal," 
<)t\villi>tiiii<l- 
I'LTiil  tnmstVr 
I'd  a  trust  in 
r"s  assii^iK'cs 
irli  tlii'V  liad 
•  thcMiiselvt's. 

if;  tho  settlor  to 
not  cvtMi  use  the 
ncnt  is  founded 
!■  tli<  fust,  al- 
the  in>!U'  ment 
f  ttiH'iiint-;>i,  tlie 
e  In  '•',  ami  tlie 

ttary  lUsposltion 
llisun  0.  Kllisou, 


f,  V«'«.  (i.'ii;  I  Wh.  V  lihl.  I..I.  I';!-.  i;<i-  -"■'',  1'  111"  li'iiillnt:  FnirlNti 
oa.«f  oil  llil'i  |H)liif.  (ii  tliut  I'lisc  I.onl  ('liiiMiTlldj- i;i(liiii  said;  "I 
tiiki'  till'  dloiiiictlon  III  1)1',  tliiil  If  vol!  w.iiii   ihi'  iixslsiniicc   of  the 

point  to  (■oiistllntr   \on   rmlni  ii'ir  ^-lo^  ;llld   llli'   IllstmilK'Ilt  Is   vol- 

iiiitiuy,  voii  sliiill  nut  htivc  tliat  iissi^iuiur  for  the  imrpo-t-  of  I'on- 
siiiiiiinii  von  ii>>iiii  ijiir  inmt;  as  upon  a  covenant  to  tniiisfrr 
^to(•k,  <  ic,  if  ii  list-  in  covfiiaiit,  and  Is  purtdy  \<>lnntaiy, 
(Ills  foiiit  Will  not  (  xi'i'iitc  iliiii  voluntary  covenant.  Hut  If  the 
party  lia«.  coinpleti  h  transferred  stock,  etc  ,  tlioiinh  It  ih  volun- 
tary, yet  till'  le;:al  conveyance  lieilll,'  effect  ually  made,  the  eipllt- 
able  intcrcHt  will  he  elldu-ced  hy  this  court,"  'riierefore,  where 
a  settlor  actually  constitutes  himself  a  trustee  for  volunteers,  a 
c.<iirl  of  eipilly  will  enforce  tlie  trusts  declared;  i.s  If  lie  simply 
.1((  lares  hliris.jf  to  he  a  trustee  of  the  |iro[perly  for  aiiolhcr,  a  coiu- 
ph  li'  trust  is  creiilcil  aihl  the  court  will  act  upon  it. 

Hut    Informally  alteinpi  ini;  to   dis|iosc  of  an   interest  Can  In  the 
>i'ldier's    case    aliove)     will    Hot,   if  lln'  duiui'  hr  a    ciihiiilii-r,    (i.i'., 

niie  who  pays  noiliina  for  the  property,  hut  y;ets  it  as  u  jilft)  constl- 
tiile  II  trust  for  him.  In  an  Kiii:lisli  case,  Mr.  Craufiu-d  made  the 
tollowiii;;  Indorsement  upon  ii  receipt  for  a  subscription  In  the 
I'orth  and  Clyde  Na\  Illation  Coinpuny;  "I  do  hereby  assi;;ii  to  my 
d:ui;:ht(  r,  .\iiiia  Craufiu-d,  all  my  ri'.ihl,  Idle  and  inleresi  of,  and  hi, 
i|i  ■  enclosed  call,  and  all  other  calls  of  my  siibscripiiou  in  the  Clyde 
ami  I'orth  N'avl;:atloii."  Tliis  was  no  comph'ic  le;:al  assi;iiiuient, 
hut  it  was  attempted  to  lie  arirued  that  the  father  meant  to  make 
iiiinsclf  a  trustee  for  Ids  (lau;:liler  of  these  .shares.  It  was,  how- 
i\er,  held  that  there  was  no  trust  created,  the  MastiM'  of  the  UolN 
sa\lni:.  "Mr.  Craiiford  was  no  otherwise  a  trustee  than  as  any 
iiiiiii  iii;iy  be  c.illed  so  wlio  professes  to  ttive  property  by  an  Instru- 
mint  incapable  of  conveylni;  it.  lie  was  not  in  form  d.ecl.'ired  a 
iriisiee,  nor  was  tliat  iiiod<'  of  doiic.;  what  lie  proposed  in  his  con- 
iiiii|dution.  lie  inidnt  n  yift.  He  says  lu'  assi;ins  the  property. 
Hut  it  was  a  (iift  not  c(Miip',ete.  The  property  was  not  transferrej 
by  the  act.  Could  he  himself  have  been  eoiupelled  to  give  effect  to 
ilio  nift  by  making;  an  assijjiiuicnt  V  There  is  no  case  In  which  a 
party  has  been  compelled  to  perfect  a  ;;ift,  wliicli  in  the  modi?  of 
niakinj,'  it,  lie  has  left  imperfect.  There  is  a  lanis  puiiilenriie  as 
!»Mi;.'asitis  incomplete."  .Viiirobus  r.  Smith,  li' Ves.  :!!•.  In  an- 
'.ilier  receii*  case,  the  areatest  chancery  judKe  of  his  day,  Ji:s.si:i., 
M  K,,  tiiiis  summed  up  the  law  cm  this  subject :  "  The  iirinciple  is  u 
\ery  clear  one.  \  man  may  transfer  his  property  without  valuable 
consideration  in  one  of  two  ways:  he  may  either  do  such  acta  as 


10 


K«^i:rVY    (ASKS    SIMI'I.IIIKI*. 


amount  in  Iuny  to  a 


,i.ii<..uii  ...  .a>-r  , ..iivcyiiiKc  or  :i'<>iu'niTU'iit  of  llif  prop.Tty,  and 

tlui«  coinpl.'t.'ly  iliv*.>t  hi.ascif  of  the  I.'UmI  owncr-lnp,  in  which 
case  till'  p.T«tnn  wlio,  liv  tliosc  ucIn,  iic(iuin's  ihf  property  tal<(S  It 
bcn.'n.'iallv,  or  on  trn>t,  .i>.  llu-  c:is.-  may  b.-;  or  tli«  h'Siiil  owner  of 
the  pn.pertv  inav,  1)V  ono  or  other  of  the  m...U.s  reeo-iii/.ed  as 
•mouiUin-  to  a  valid  deelaratio.i  of  trn-t,  eon«^titntP  himself  a 
truste.',  an,l  without  an  actual  transfer  of  Hh-  le-al  title,  mav  so 
d.'ul  with  th.-  pn)pertv  as  to  .leprlvo  himself  of  its  ben.'lkial  owner- 
ship, and  declare  that  he  will  hol.l  it  from  that  time  forwanl  in 
truM  for  the  .)ther  person.  It  is  true  he  ne.Ml  n.it  use  the  words, 
'I  declare  myself  a  trustee.'  but  lu-  must  d..  sonielhini;  which  is 
equivalent  to  it,  and  use  expressions  which  have  that  nieanini;;  for 
however  anxious  the  court  may  be  to  c;.rry  out  ,i  man's  intention, 
itis  notat  libertv  to  construe  words  otherwise  than  according  to 
their  proper  n>eaniu-.  *  *  *  Tliu  true  distinction  appears  to 
me  to  ba  (dain  and  beyond  dispute;  for  a  man  to  make  himself  a 
trustee,  there  must  be  an  exi)ression  of  intention  to  b.come  a 
trustee,  whereas  words  of  pr<  sent  nift  show  au  intention  to  fiive  over 
proi.erty  to  anolh.r,  and  n..t  to  retain  it  in  the  d.mor's  own  hands 
(or  any  purpoHc,  li.luciary  or  otherwise."  liichanN  r.  Delbridce,  I-, 
]{.  iH  K,,.  cx;. 

In  the  absence  of  an  express  power  i>f  revocation  in  the  instru- 
ment  itself,  a  conveyance  or  declaration  of  trust  in  favor  of  a  vol- 
unteer cannot  be  revok.d  or  avoide.l,  except  in  the  cas.'  of  an 
assiuMimenl  of  proi)erty  in  trust  for  cre.litors  which  is  revocable 
until  the  creditors  have  assented  to  it. 


[1 

Nichohis 
propofty  t' 
luT  t loath, 
his  ow'ii  ro 
1111(1  iippro^ 
.lid  not  e; 
piopiM'ty  ii 
Id  do  so. 
iiiti'iided  ti 
iniicli  of  tl 
tioiis,  shot 
ndiitivcs  o 
time  ol"  \m 
siriiio;,'  *'  •' 
to  amount 


Wheu  pre 
jierson  is  by 
pose  of  it  in 
treaty  is  hel 
thin;;  to  be  d 
trusts.  The 
these  l)elnj; 
creator,  or  ( 
ment.    The> 


EyLITV    CASKS    SIMl'MFlKn. 


U 


PllECATOKY  TJiUSTS. 


IIAUI>I\<;   V.    OI^YN. 


[1  Alk.  4i;'.i;  L'  Wli.  ><:  Tud.  Ltl.  (as.  Va\.  <i»fi.] 


Nicholas  Harding,  i»y  iiis  will,  gave  all  his  personal 
proportv  to  his  wile,  but  did  desire  her,  at  or  itel'ore 
her  death,  to  give  the  sanm  unto  and  amongst  such  of 
his  own  relations  as  she  should  think  most  deserving 
and  approve  of.  The  studcMit  will  note  that  Nicholas 
tlid  not  expressly  recjuire  Mrs.  H.  to  dispose  of  his 
niopcrtv  according  to  his  wish,  he  simp'y  desired  her 
to  do  so.  Yet  the  court  ludd  that  the  wife  was  only 
iutiMuled  to  take  l)eueticially  during  her  life,  and  that  so 
luiii'h  of  the  pi-operty  not  dis[)osed  of  among  his  rela- 
tions, should  he  divided  e(pjally  amongst  such  of  the 
relatives  of  tht^  tc^stator  as  were  his  next  of  kin  ;it  the 
time  of  his  wile's  death.  "  The  words  '  willing  or  de- 
siring,' *'  said  the  court,  *'  have  been  frequently  held 
to  amount  to  a  trust." 

Wlieu  property  is  jjiveii  absolutely  to  any  person,  ant.!  the  same 
person  is  by  the  irivcr,  recouimended,  desired,  or  entreated  to  dis- 
pose of  it  in  favor  of  another,  such  recorainendation,  wisli,  or  en- 
treaty is  held  to  create  a  trust,  as  tho'!!''i  he  had  connnanded  the 
thln^to  be  done.  Such  trusts  are  known  to  lawyers  as  precatory 
tiusts.  They  corae  properly  under  the  definition  of  express  trusts, 
!hoso  l)elnf;  dcOncd  as  trusts  clearly  expressed  by  tlie  author  or 
(  rt  ator,  or  capaiile  of  lie;ii;;  fair'y  collected  from  a  written  viocu- 
ment.    They  cannot,   of  course,  I)  •   «aid  to  be  cUarly  expresBcU, 


12 


KC^riTY    TASl'S    SIMI'l-II  IKU. 


but  yrton  a  corri-<i  int.Tprrtatiou  of  the  whole  iiisirimi.-iit  they 
may  f.iirlv  hv  collectfil  fri>ni  it. 

TliP   rfcoiiiinoiuiiUinn,   tritifaty,  or   wish    will    hv    U>-\<\    ""<    to 

cro.iif  a  trii^l. 

I      Whnr  th''  f..n/.<  'irr  .v..  km  d  thn'  ■<!'  lh<  irhnl>-  the'j  <><i,jht  not  li>  if 
constr.inl  as  i,„i,.',;Uin.     -  Th«    wi>h   uf   tho   t.>lator  .should  1h'    P.- 
-iinl.'.l  us  a  c.minaml,  i(  |H)s«ii)lc.     Th.'  words  in  Mr.  Harding's 
will  mad.'  it  cU-ar  that  lu;  iiitemh-d  hi-r  to  taki-  oidy  diiriiisi  hiT  life, 
and  so  a  trust  was  .'nfonT'l  l>y  the  conrl.     But  if  the  ^iver  accom- 
panii's  his  .xprt-ssioii  of  a  wish  or  desire  l)y  words  whicii  show 
tliat  he  did  not  intend  it  to  he  imperative,  or  did   intend  that  the 
tlrst  talxer  was  to  liavc  a  diseretionary  power  in  tlie  matter,  tlien  no 
trust  will  he  enforced.     An  Irisli  ueatleman  of  tlie  name-  of  Greene, 
some  lifte.ii  years  aLjo,  made  a  will  in  these  words:   "  1  -ive  and  be- 
(lueath  all  my  property  to   my  dearly  beloved   wife,    L\dia,  well 
knowing;  iier  sense  of  jnsti<<'  ami  love  to  her  family,  and  feelint; 
perfeet  eonlldenee  that  sh.'  will  nianaj;e  same  to  the  best  advantap- 
fur  tlie  benelll  of  her  <hililren."     Tlie  court  held  that  this  will  did 
not  create  a  precatory  trust  for  the  children,  but  that  Lydia  took 
all  tlK'  properly  absolutely,  for  the  document  jiavu  her"t:iat  dis- 
cretionary p.iwer  which  cannot  co-exist  in  the  smallest  measure 
with  the  crt-ation  of  a  precatory  trust."     (ireene  c.  (ireene,  a  Ir. 

Rep.  (l-.i  W>,  I'-"'- 

•J.  Wln-re,  thi-  subjf-rt  <>/ the  rfcommciidtitiiin  or  wish  is  unct-rtain.  ~ 
The  fxramlfather  (.f  WlUiaiu  Wynne,  In  the  year  1773,  left  his  prop- 
erty by  will  to  his  wife,  "  not  doubtinn  but  that  hhe  will  dispose  of 
lohat  »hall  he  left  at  h,r  death,  to  our  -rand.hildreii."  When  grand- 
raother  Wvnne  died,  William  tiled  a  bill  a-ainsther  i)ersonal  repre- 
sentative to  recover  what  was  left ;  but,  unfortunately  for  him,  his 
bill  was  dismissed.  "If  the  intention  is  clear  what  was  to  be 
fliven,"  sahl  the  Lord  Chancellor,  "and  to  wli.mi,  1  sh.mhl  think  the 
wor.ls  not  .lonhtimi,  wouhl  be  stron-  enou-h  to  create  a  trust. 
But  H'h-rfl  it  is  nnv^rtain  ,rhat  pi-opirfj  was  to  he  ,,ir,m,  the  words  are 
uot  sullicient."     Wynn.-  r.  Hawkins,  1  Bro.  C.  C.  17!i. 

;!  Where  the  „h}eets  .-/•  iieesuns  intended  to  hare,  the  hentfit  of  the 
reeommrndatioH  or  v-i.^^h  are,  also  uncertain.  -  Ow  Kilward  Moore, 
clerk,  made  a  will  which  illustrates  this  rule.  He  bcMueiithed  all 
his  worldlv  p.ods  to  his  wife,  Mary,  recommendiu::  to  her,  and  not 
doulitiii"  that  she  would  consider  his  near  relations,  as  he  would 
have  dime  if  he  lia.l  survived  her.  But  the  court  held  that  Ed- 
•ward's  brothers  and  sisters,  thou-h  his  only  next  of  kin,  iw)k  uotli- 
injr  by  the  will,  lor  the  words  "  near  relations,"  were  too  vague 


r.(,>rnv  <  am:s  mmi'Miii-.d. 


i;? 


^iruiiK'iit  they 
lii'M   ii"t    to 

(IIKjIlt  tint  til  bf 

.should  1>0  I'f- 
Mr.  liiirdiiig's 
iirin«  luT  life, 
•  fjivt-r  iicconi- 

s  which  .show 
iiii'iiil  that  the 
milter,  tlR'ii  no 
iiiu-  of  Greoiit", 
'  1  ;:i\  (■  iiHil  hc- 
i',  L.vdiii,  well 
ly,  !in<l  fi'tliiii; 
In-st  iidvantilfje 
III  this  will  dill 
lilt  I-ydia  took 

Irt  "  t'.iat  dis- 
iilU'st  iiit'iisure 
'.  iJreene,  a  Ir. 


,ud  uncTtiiin  to  CIV  If  a  trust.  "  S'lppo-sinu'."  >aid  the  court 
•that  the  words  iu  this  ciisc  would  I'rcatc  a  trust,  tl  osc  words  are 
,.,,uided  with  s,,nic  d,-ree  of  uncertainty.  Who  arc  the  objects  of 
,1,.  nusi?  Did  the  testator  mean  relations  at  Ids  own  dctith  or  at 
|.,s  wife's  death?  Uid  he  mean  that  she  should  h;iv  the  lllurty  of 
i  Mcutiiifj  the  trust  tlie  day  after  his  death?  Various  other  eonsid- 
craticnis  lui-lit  l)e  introduced  to  show  that  the  olijeets  arc  niicer- 
tuin."     Sale  '•.  M.iore.  1  Sim.  "•:'..■.. 


IS  iincfrtain.  -— 
J,  left  Ills  prop- 
will  dispose  of 
'  When  grand- 
personal  repre- 
ely  for  him,  his 
,hat  was  to  be 
^llontd  think  the 
create  a  trust. 
I,  the  words  are 
7:1. 

In-  hm^fit  of  the 
l'",dward  Moore, 
'  l)et|neHthed  all 
to  her,  ami  not 
lis,  as  he  would 
•t  held  that  Ed- 
t  kin,  lyokuoth- 
were  too  vague 


11 


i-.(.nirv  (  Asi:s  MMi'i.M'ir.i) 


/.7;.vr///7.\v,  v/iTNy's 
(7/J.S7;  .)fOxi:v 


f'AiiTV  /'AViNi;  rrii- 

ADVANCEMEXT. 


I»VI-:i{    ^.   BYKIJ. 

[L'  Cox  Cli.  '.•■-';    1   Wh.  .<  'I'lul,  I.>1.  ('a>.  V.i\.  L'i.>;t.] 

SimoM  Dvcr  i>;ii(l  the  purchasi!  iiiDiicy  lor  some 
proix'ity  ill  till-  (•(iiiiity  ol"  Wilts,  and  hud  tlic  dcoii 
made  to  liiiiiscll",  iiis  wife  Maiy,  and  his  son  William, 
jointlv.  Tlic  cUVct  of  this  kind  of  a  convcyanci;  was 
that  wiicn  one  ol'  tlu'  three  died,  tin'  two  survivors 
took  lii«  share,  and  wlien  aiKitiu-r  died, the  lon^i'st  liver 
•rot  the  whole.  Mrs.  I)y«'r  died  lirst,  and  then  Simon 
went  over  to  tiie  majority,  l»nl  not  hefore  he  had  made 
a  will  devisiiii;  all  his  interest  in  tlio  premises  to  the 
plaintitV.  William  very  naturally  consideretl  all  the 
property  to  l)e  his  own,  Init  the  plaintili"  insisted  that 
as  the  purchase  money  was  all  paid  l>y  Simon  Dyer, 
William  was  only  a  trustee,  and  altliouj:h  the  h'gal  estate 
was  in  William,  the  equitable  tith'  to  the  property  was 
in  hi>  lather,  antl  devolved,  therefore,  under  the  will, 
upon  the  plaintill". 

Hut  the  eourt  held  that  though,  if  no  relationship 
had  existed,  there  would  he  a  resultiiii:  trust  in  favor  of 
the  person  piiyim,'  the  purchase  money  ;  yet  the  cir- 
cumstance of  William  Iteiujr  the  child  of  the  purchaser. 


itoM 


i:#»i  riv  (  \.»i.s  M\ii'r.iiiiM». 


15 


X(;  jTii- 

XT. 


\-  for  some 
(1  the  dcoil 
)ii  William, 
■pyaiice  was 
()  .survivors 
i)iii;<'st  livor 
tlicM  Simon 
o  iiiul  niiulo 
lisos  to  tlU! 
r.'d  all  the 
nsistoil  that 
limon  Dyer, 
•  legal  estate 
ropcrty  was 
or  tilt'  will, 

ri'lationship 
t  ill  favor  of 
yot  thf  cir- 
)  purchaser, 


(iiuraliil  111  ri'hiil  I  he  rcsiiltiiiir  t  riHt ,  and  William  took 
till'  propiTtv  ln'ut'lirinlly  a^  an  advain'cmcnl  from  the 
fit  I  If  r. 

Tlic  uciuT  il  rill'.'  on  tills  siil)je<'t  is  tlmt  if  ft  person  purchases 
prii|Mrly  with  liis  own  iiioiicy,  ami  the  ilfuil  is  tiikcii  in  tli»'  name  uj 
aii'iilicr,  till'  liittfr  hcij.ls  till'  laiiil  in  trust  by  iiiinlication  of  law, 
;iikI  wilhoiit  any  uiirii'iiifiit,  for  liiin  wliosu  n>oiu-y  has  paid  for 
It.  Tin-  roason  of  this  iloitriiu'  is  that  tin;  man  who  pays  the  piir- 
cha-f  inoiifV  is  supposed  {n  intend  to  hecoine  tin'  owner  of  the 
:.r.i|perly,  and  the  heiieilcial  title  follows  this  supposed  inlention. 

Uiit  a  resiiltini;  Irii>l  will  ntit  arise. 

1.  \\'/iirt>  III!'  i>iircli<isf  ini'iifji  is  luiid  Inj  ttu'  ptinnt,  (ind  thi-  ron- 
i;>i>tiici'  is  titki'H  in  Ihe  iiuinr  of  Ihe  r/iiVi/.  —  More  till'  presiiiiiplion 
of  a  trust  is  ivbntted  liv  the  .supposed  intention  of  the  iiareiit  to 
tieiiellt  the  child;  and  the  latter  is  held  to  takt'  the  property  henefl- 
lially  as  an  advuneeineiil.  Dyer  t'.  Dyi'r  illustrates  this  exception. 
1'  should  1)0  noted  tliat  this  exce|>'ion  applies  '  .  other  relations 
th:m  those  of  parent  and  child  — it  applies  wherever  the  person 
stands  in  hn-t,  pui-fnti:'  to  the  party  heiit'tlted  —  as  the  case  of 
grandfather  and  ;irandeliild,  mother  and  dauizhter,  husband  and 
wile,  and  the  like. 

2.  UVktc  tlif  miincii  is  not  jinid  'it  (lie  tiiw  vf  the  pnirliase.  —  A  pay- 
iiiriit  made  subseipicntly  to  the  purchase  cannot  raise  a  trust.     Uud- 

>v  ■.  Uachelder,  .".:i  Mc  lo:;. 

:!.  Whert  the  mowi/  is  not  adntiici-'i  li'j  the  purt'j  in  the  character  nf 
n  ;.i()v7(((.s('c.  —  As  if  one  pay  thi'  purchase  money  by  way  of  Ukvi  for 
iiuother,  and  the  conveyance  is  taken  to  the  other,  no  trust  will  re- 
villi  to  the  one  who  thus  pays  the  purchase  money.  Terry  on  Trusts, 
-..(■t.  1 :',:». 

I.  Where  the  transaction  contruceni's  n  slutide  or  i>Hlitic  policy.— 
Ihiis  where  the  laws  of  the  State  of  New  York  prohibiti-d  an  alien 
fi  Mil  taking  and  lioldiu'^  real  property,  and  an  alien,  in  order  to 
fvade  their  i)rovisions,  purchased  a  lot  of  land  and  had  a  convey- 
aiice  niaile  to  a  third  person  who  was  capable  of  holdinu,  it  was 
.>  Id  thsre  was  no  resultinji  trust  in  his  favor.  "  ICiiuily,"  said 
(  hancellor  \V.\i.w<ii!T11,  "  will  never  raise  a  renulting  trust  in  fraud 
■  f  the  laws  of  the  land."  The  object  of  the  ICnfilish  statutes  as  to 
die  registry  of  ships  is  to  f;ive  ciun.dusive  information  as  to  the 
litle  of  ships.  Therefore,  where  A,  advanced  the  purchase  money 
of  a  ship  which  was  registered  in  the  name  of  U.,  it  was  held  that 


k; 


Kornv  <\sKs  siMi'i.iiu  i>. 


„.>  irii-t  wuuUl  arisr  in  f.iv.ir  -f  A.  "  ■Pln'  r.iii,ir.v  act>,"  siiiil 
I/.nl  Ki.iM.s,  "  were  drawn  IIP""  tlii>  polii'v.  Ili;il  il  isforllir  public 
intiTot  lo  s»H-uiv  cvlilvncf  of  tUf  till-'  to  :i  -'.lip  from  lur  oii^'iii  t" 
the  moniiMit  In  whi.'li  you  look  back  to  1i>t  liiston  ;  liow  far 
tliroui;hoiil  ii.r  owinr-hip  slu'  li:i-  licm  I!rili-li  l)iillt  ami  Hritis'.i 
owned;  imd  il  i>  .iliuoii>  lliat,  if  where  Ilie  t'lle  arises  liy  aet  of 
the  partes,  tlie  doctrine  of  implied  trust  in  tiiis  court  is  to  he  ap- 
plied, the  whole  policy  of  these  act-  may  he  defeated."  V.\  parte 
Yallop,  1.".  Ves.  i;s.  And  tln'  same  i>  true  where  the  purpose  is  to 
defraud  individuals.  In  N<'W  .]rf>,-y  ahont.  twenty  years  a-o,  Jere- 
miaii  IJaldwin  complailK'd  to  the  court  of  tdiancpry  that  his  son-in- 
law,  ('ainid\eld,  was  in  possession  of  some  of  his  properly  wliicli  he 
refus.'d  to  izive  up,  and  asked  ihe  court  to  compel  him  to  do  so. 
Some  sev.ui  v.'ars  before,  Hill.'^in,  bein-  pressed  by  his  creditors, 
-ot   lii.s  s(.n-i'n-law  to  purr;.  -n-operty  at  a  sheriff 's  sale,  he 

(Baldwin,  fiirnishin-  tia    '■  .    '  ''amplU-l'l  takinu  the  convey- 

aiiee  to  himsulf  to  protect  .  ■.'  creditors.     Hut  the  court 

refused  to  declare  and  eufor.e  a  tiust  which  had  Ix'cii  resorted  to 
for  a  fraudulent  purport'-     "aMwin  r.  (  aniptlel.l.  s  .\ .  ,I.  ,^i:q.)  ,s:ii. 
5.  Re.sultiu}.' trusts  of  this  kiiii       've  ibolished  by  statute 

In  some  States;  amonii  them,  Indi.ina,  ]■;.■  I'l.c'  >.  ^,  i.'hi.u'an,  Minne- 
sota, .Massachusetts,  Maine,  New  Vorlv  and  Wisconsin.  Bisp.  Kq., 
sect.  H."i. 

11.  But  a  n-sultinu  trust  may  arise  in  other  ways,  viz. :  — 
1 .  II7if/v  a  pn-.'iun  hnlding  :i  fidacianj  paMtion  /-d/v/i.f.s.  ■■<  prnpcrtu 
iritli  till'  lUlnriurij  funds  and  takfx  tli>-  titir  in  his  ,„rn  iiamc.  —  X.  Is 
B.'safjent,  and  buys  property  with  B.'s  fnnds,  Imt  has  the  deed  made 
loirmr, A.i  ;  orheisB.'s  partner  and  purchases  with  the  ()artnersliip 
funds  and  takes  tlie  title  lo  himself  alon.-,  or  h.'  is  B."s  ■luardian  and 
does  the  same  thiui:.  In  all  these  instances  a  trust  in  the  property 
will  result  to  B.,  whicli  trust  equity  will  enforce  in  B.'s  favor.  This 
rule  applies  \n  both  real  and  personal  property. 

L',  ]\'/iere  th'-rr  is  n  roliiiiOini  mm;  >ifiii.'r  iritlmut  amj  amsidem- 
tinu,<iiidit  ,ii>i>i;,rs  th'tt  the  ijraHle,-  khh  not  inti-ndrd  to  take  hen, fi- 
i-ial'hj.—  Korinerlytlie  law  w(mld  presume  that  a  man  would  not- part 
with  his  iM-operty  w  itliout  value  r.'ceived  ..f  some  kind,  and  a  re- 
Rultinu'  trust  to  ti.e  ori-inal  holder  was  always  held  to  arise  out  of 
mich  irtraiisaetiou.  "  But  the  true  rule  now  seeins  to  be  that  where 
the  instrument  is  pcrf.'ctly  exe.Mfed  and  intended  to  operate  at 
ouce,  no  resultin-  trust  for  the   -raiitor  will  arise  from  the  mere 


liMi 


r,<^i  iTV  CASK-.  snin.MiKn. 


17 


,■  aft>,"  i^aiil 
or  iliL"  piiblii 
hrr  ori;;in  ti' 
irv ;  liifw  fiir 
t  1111(1  Hiitis'.i 
ics  liy  :irt  ol 
•!  is  til  lie  ilp- 
."  Kx  |i:irli 
inii-|>iisc  N  Ii' 

Mt  Ills  soii-in- 
■rly  wliiih  In- 
him  to  ill)  so. 
his  creditor-, 
riff's  sail',  lit' 
^  llu>  coiivcv- 
Jiit  tlie  court 
■11  resorted  to 
J.  (K.|.)  .VU. 

ed  by  statute 
lii^aii,  Miniie- 
1.     Uis|).  l'.i|., 


(;i(  t  that  the  irausactioii  Is  a  voluntary  one,  unless  there  are  other 
( iieiimstaiiceM  which  tend  to  show  that  the  Krautee  was  not  in- 
teudi'd  to  take  beiieflcially."     Hisp.  Ki|.,  sect.  '."O. 

^^.    inicrc  tlnre  is  -t  <Uspiinitioii  "f  tin'  propert'i  on  trust,  hut  no  trust 
-  .Ifcliired,  or  is  onlii  I'irtiaUij  diclimil,  or  irlwlhj  or  ixtrtia'l'j  fdils.  — 
On  ihii*  point  see  Mayor  of  (iloitccster  c.  Wood,  pnst. 

•1 


nisfs  property 
name.  —  A.  Is 
the  deed  made 
he  piirtiH-rship 
■■  iiuardian  ami 
1  the  property 
s  favor.     ThiiJ 


(inij  coiisident- 
'.  to  take  hi'in'Ji- 
vould  not-  part 
kind,  and  u  rc- 
o  arise  out  of 
be  that  where 
to  operate  at 
from  the  mere 


1« 


KQI.ITY   CASEIN   SIMI'LIFIED. 


FAlLUliE  OF  TUrsr. 


3I.VY<)I«  OK   Cil.Olt'ESTKll  v.    WOOD. 


Jiimcs  W(»(hI,  Ks(i.,  ot  (ilourcstcr,  \Tas  a  very  rioli 
niiiii,  iii»(l  a  very  puljlif-spiritod  citizen.  Wlu'ii  his 
will  was  read,  it  was  touiid  that  he  iiad  in  a  very  niunlH- 
eent  manner,  left  the  snin  of  £20(),000  to  his  native 
city  "for"  (so  the  will  read)  "the  purpose  I  have 
iM'fore  named."  Unfortunately,  however,  for  the  citi- 
zens of  (iloucester,  nowhere  among  the  decea.sed  gen- 
tleman's papers  could  any  mention  of,  or  hcrpiest  to, 
the  city  l>e  found.  The  city,  however,  laid  claim  to 
the  £200,()(K),  but  was  misuccessful,  the  court  holding 
that  the  inoiiev  heing  d«'vised  upon  trust,  and  no  trus/ 
being  thcUtn'd,  it  must  result  to  the  testator's  estate.   .1 

Where  a  voluntary  disposition  of  property,  by  deed  or  will,  is 
made  to  a  person  as  trustee,  and  the  trust  is  not  declared  at  all,  or 
is  Ineffectually  declared,  or  does  not  extend  to  the  whole  interCBt 
given  to  the  trustee,  or  it  fails  wholly  or  in  part  by  lapse  or  other- 
wise, the  interest  so  undisposed  of  will  be  held  by  the  trustee,  not 
for  his  own  beneflt,  but  as  a  resultlui?  trust  for  the  donor  himself  or 
his  heir  lit  law,  or  next  of  kin,  as  the  case  may  be.  Hill  on  Trustees, 
113.  This  rule,  it  sliould  be  noted,  does  not  apply  to  a  disposition 
based  upon  a  valuable  consideration. 

So,  where  the  Rifl  is  made  upon  trusts  which  are  effectively  de- 
clared, but  which  do  not  exhaust  the  whole  interest  conveyed,  the 
residue  will  result  to  the  donor  or  his  heirs.  But  a  distinction 
should  be  observed  between  a  fxift  to  a  person  for  a  particular  pur- 
pose, which  does  not  exliaust  the  interest,  and  a  gift  of  the  same 


i;(/i  rrv  casks  simi'Miikm. 


ll> 


•OD. 


vory  rich 
Wlu'ii  his 
Dvy  inuuiti- 

his  niitive 
ose  I  havp 
'or  the  citi- 
oHscd  geii- 
hcquest  to, 
tl  claim  to 
art  holding 
lul  110  trns/ 
or's  estate.   .| 

ed  or  will,  is 
ared  at  all,  or 
vhole  interest 
apse  or  otUer- 
le  trustee,  not 
nor  himself  or 
11  on  Trustees, 
D  a  dispusitiou 


interest  subject  to  ii  particular  clijunc  Tlius,  A.  devises  to  B.  the 
Hiini  of  81,000,  and  charges  tliis  sum  with  tlie  payment  of  liisdebt*. 
|{  tlic  debts  amount  to  l)ut  SoOO,  tlic  l)alance  goes  to  B.,  and  does 
not  result  to  A.'s  estate. 

A  very  important  exception  to  tlie  rule,  tliat  if  the  trust  is  not 
iiillicieutly  declared,  the  f{ift  will  fall  and  hecDme  a  resulting  trust, 
I'xislK  in  the  case  of  charitable  trusts.    See  next  case. 


effectively  de- 
conveyed,  the 
t  a  distinction 
particular  pur- 
[t  of  the  same 


20 


EQUITY   CASKS    ^SlMi'L^•l^;U. 


(j/Uh'iTAiii.i-:  rnisTs     the 

hum:. 


t'Y  rilES"  DOC- 


JACKSON    s.    IMIII-I-li'«. 

I  II  Alk'ii,  :u\.\ 

Fnuu'is  JiKkM)!!,  oC  Uo^ton,  soiiu-  tiim-  l)ft'oro  llu' 
civil  wiir.  hi'Mticatlu'd  :i  roiisi(lcr!il»U-  sum  of  money  In 
WilliMin  Lloy.l  (JMiTisoii,  W(Mi.lcll  Phillips,  and  cthcr^ 
as  trn-^tccs,  •"•1(«  uso  for  tlic  i)n'[).iratii)n  and  oinMilation 
ofbooks,   nrw^i.aiHTs.   tin-  dHiwry  cf  spiM-i'lK's,  and 
such  other  nican^,  as  in  tlu'ir  .ind-incnl  Nvill  civato  jv 
puhlic  sentimiMit  that  will  put  an  end  to  n.-m  ..lavery 
in  this  connlry."      Anotlun-  sum   lu'  likewise  left    to 
trustees,  "  I'or'the  l.eneHt  of  fu<>itivo  slaves,  who  may 
escape  from  the  slave-holdin;-  States."  .  Mr.  Jackson 
didnot  live  to  read  President  Lincoln's  Emancipation 
Proclamation,    or    the    Thirteenth    Amemhuent ;    be- 
fore the  litiiiiition   over  his  will   was  termimited,  slav- 
,ny  was  abolished  in  the  United  States.     It  bein-r  no 
longer  i.ossiblo  that  the  money  could    be  applied  to 
lhes(>  purposes,  the  trust,  if  it  had  been  a  private  one, 
would   have   lapse.l.      lint  because   it  was  a  chavital)le 
trust,  the  court  held  that  it  would  carry  out  the  testa- 
tor's intention  as  nearly  as  possible,  and  ordered  that 
tho  first   fund  should  be    paid   to    the   New   England 
Branch  of  the  .Vmerican   Freedmen's  Union  Uommis- 
sion,  and  that  the  second  sum  should  be  applied  to  the 


^am 


u. 


i:(/i  nv  cx^i  s  MMi'i.niKh. 


n 


y  /'/I'A'.s"  DOC- 


liiiu'  l)t'f(>ro  tlu' 
uiu  of  money  to 
iUips,  iiiid  other- 
11  ;iii(leireiiliitioii 
:)t"  sl)eeelKV>«,   tiiul 
I'ut  will  ei'oiito  ii 
to  lu'irro  slavery 
liUewise   U'i't    to 
«liiv('s,  who  may 
."  .  Mr.  Jackson 
I's  Emaiieipation 
Lmcixlment ;     1)C- 
terminatod,  slav- 
es.    It  boiiiir  no 
Ul    ho  applied  to 
;eii  a  private  one, 
t  was  a  charital)le 
rry  out  the  tosta- 
and  ordered  that 
he   New   England 
s  Union  C'ommis- 
[  1)0  applied  to  the 


ii^e  of  needv  persons  of  .\fii«:in  tleMcnl,  in  the  eity  of 
^(.■^ton,  prel'erenee  being  given  to  sneh  a>  had  e.seaped 
lioni  slavery. 

".\clmrlty,"  siiid  Cliifl  .lii>ticc  (•nw  In  ilu'  iilmv.'  laHf,  "  lirltiga 
irU't  in  lliii  NUiipKi-l  and  fXffUtiDii  of  ^vlli(il  ilir  whole  |uitilif  in 
(,.iiriTiu-(l,  aiKl  wliicli  IS  tii.'ivforr,  iillowfil  l.y  tin-  law  to  li«-  yvr- 
pctiml,  (U'stMvcs  mill  ofU'ii  riM|uirfs,  tin-  cxcniM'  of  a  larnvT  ili^xn'- 
lioii  hy  tlif  court  of  tliiiintry  Uiaii  a  iiici-f  (.livatf  tru-t.  *  •  » 
li  ii,  aci'.irdin^ly  wi-11  siMtU'd,  by  dcNioiis  of  ilir  liiulicst  aiuhority, 
tliai  wlion  a  (iifl  is  iiiadu  to  trusifi-s  for  a  cliariialpk-  iiurpo>.i",  tin- 
C.n.'ial  nature  of  which  is  ixdnUtl  out,  and  wliicli  is  lawful  and 
valid  at  the  tiiM.'  of  the  d.atli  of  the  testator,  and  no  intention  is 
.  xjirossed  to  limit  it  to  a  parlicular  institution  or  mode  of  appliua- 
tioii,  and  afterwards  either l>y  ehan;;e  of  liiTunistunies,  the  siheine 
of  the  testator  becomes,  impracticable,  or  by  chanue  of  law  becomes 
iilri,'al,  the  fund  haviiw  once  vested  in  tlie  charity,  does  not  go  to  the 
1..  i"s  at  law  as  a  resultin;:  trust,  but  is  to  be  applied  by  the  court 
of  chancery,  in  the  exercise  of  its  jurisdiction  in  .MUity,  as  near  the 
;.  Mtator's  ivarticiilar  directions  as  i.ossible  to  carry  out  his  g« ,  eral 
rliiritable  intent." 

This  is  known  to  lawyers  as  the  -w  /)C',s  ^as  near  as)  doclrine,  an<l 
isan  important  exception  to  the  «eneral  rule,  that  one  of  ihereiiui- 
rites  to  the  creation  of  a  valid  trust  is  certainly  in  the  object  to  be 
licneflted. 


22 


i;i^l  IIY    f\Sl.!^    MMl'I.lllEl). 


coxsrni-criyi:  tltsts  -VE\nnirs  j.ikx 


I  \  .•onstnuliv  trust,  a-  ,li.tlni;iii«h-M  from  cxpross  aiKJlmpli.-d 
.J^d.'nl  .."  ..ny'u  .M.l  or  pr.^nn,..!  intention  of  tlw  part.es,  or  any 


pc 


fruudulfiit  intinllon  on  tlifir  piirt.J 


MA«  KlCI"lil    ^     SY.MMONS. 

[i:,  Vfs.  :'.-".i;   1  VVli.  i  Tud.  1..1.  I'as.  K(|.  '^sit.] 

A  pcrs.Hi  .oMV.-N-  liui.l  \u  A  .lr..l.  vvhi.-h  m-itcs  tluit 
the  i.mvhuM'  in.m.-v  is  i.ll  pai.!.  or  .•(...tains  a  ivrcMi.t 
r,„-  11.0  pmrl.aM-  uunwy .  As  ii  niatt.-r  of  la.(  ll.r  pur- 
,.l,„sr  uion.'V  is  not  pai.l.      'Hiis  .as.'  .Ir.'i-l.-s  :  — 

1.  •n,;,t  tl.."  vnulor  has  a  lici.  on  llio  proporly  for 
till'  iiniiai'l  i)iirflias('  nionoy. 

2  That  a  vnidor's  lion  for  unpaid  pmrl.asi-nionoy, 
unloss  v..li...,uisl.o.l.  oxists  a-ainst  all  pors.,ns,  oxoopt 
p„nha>oivs  f.,r  valnul.lo  oousideration  without  notice, 
huvino-  tho  loiiiil  ostato. 

,\  That  anotlior  sooufity  takon  and  rolio.l  on  may, 
ao.'oi-.rn.LT  to  its  i.aturo  and  tho  oiiruiustanoos  undor 
whioh  tako.i.  1.0  ovi.louoo  of  relinriuishiuo.it ,  hut  tho 
proof  is  (.11  tho  piirchasor. 

\  vendor's  lin.  mav  lu^  .IcllncJ  as  that  hold  or  charpc  on  property 
which  a  person  has  wl.o  has  soi.l  the  sa.nc.  hot  has  not  received  the 
parelmse-n,onov.  or  th-  «-hole  of  it.  Ti.is  lien  exists  even  though 
the  deed  expresses  that  the  e<.n>ideration  is  paid  and  a  receipt  U  In- 


iiiM 


r.f^l   !IV    CASKS    MMI'I.II  ll'.l) 


2;» 


nirs  i.iKX 


pros*  and  Implnil 
(liiilT,  i|'ii'"'  i»'i«*- 
hf  parlies,  or  any 


;s. 

icli  recites  that 
mills   11    receipt 
1)1'  I'iicl  the  pur- 
cidcs  :  — 
le   property  for 

iirciiMsc-inoney, 
persons,  except 
without  notice, 


,l,,r-r.l  oil  it.  It  mii>t  !>.■  iM.rnr  in  miiitl  that  ras  .Il-cUUmI  ill  llu- 
Hhovecttso)  tli«>  takiiiK'  «>f  a  Kt-iMirlty  i*  milv  an  .^v  i.l-ii.o  of  ifliii- 
,iui.4hini'nt  bv  the  VKiidor  of  his  llcii;  aiul,  as  a  -fiieral  nilr,  the 
lalviim  .if  ii  meiv  i..r>..n.il  vcurlty,  .•.</.,  a  1)111  of  .■xclianne  or  pro- 
iiii^s.rrv  uotr,  will  not  .h-privo  the  Vfn(h.r..f  hU  li.n,  unless  indpe.;, 
Ihere  was  a  plain  int.  •>  to  Mihstltiilc  it  for  the  li.ii,  thouuh,  if 
hf  tuk«  a  totally  .list  d  In.li'ptMi.l.'iit  security,  -u.h  as  a  in..rl- 

i:»ge,  the  lien  is  u>uaiiy  lost.  In.Unniiur  Ld  Can.  i;<i.  t.it.  The  test 
i.,  was  the  s.'.iirity  iiiti-u.k'.l  to  lie  sul.stituted  for  th.^  purchase 
iii'one.T,  or  was  It  lalien  as  a  mere  euiiiulKtiv.'  sceurity? 

The  vendor's  lieu  liinds  tUo  estate  iu  the  handi  ol  the  follow ini; 
MidivldualHi  — 

1.  The  purelmser  himself,  an.l  his  heirs,  and  all  person*  tukinu 
u.id.r  him  or  tliem  as  volunteers,  i..-.,  without  iiaying  a  valuable 
innsideraliuii 

•J.  Subsequent  purchasers  for  valuable  consideration  who  have 
notice  ol  tlie  purchase  iu.)ney  remainin-^'  unpaid. 

In  like  manner  the  v.'udee  of  propt-rty  has  a  lien  on  it  after  he 
pays  the  purchase-money  and  before  the  estate  is  conveyed  to  him. 
A  vendor's  lien  is  by  some  wrlteri^  dassllled  as  a  constructive 
trust,  and  by  others  a.s  an  implied  trust.  It  Is  not  a  particularly 
Kood  Instance  of  eitl-r,  for  whllnt  it  may  on  the  one  iian.l  bo  fairly 
said  to  he  raise. I  si-  by  constructi.m  of  e<|uity  t.»  satisfy  the  .le- 
;,ian.ls  of  justice,  the  .)tli.'r  hand  it  seems  .'.lually  correct  to 

say  that  it  is  foum...  un  Implie.l  intention. 

As  to  c.mstructive  trusts,  when  a  trustee  purcliases  trust  prop- 
crtv,  nee  the  ne.xt  two  cases. 


relied  on  iniiv, 
instances  iiikUt 
^inneiit,  but  tlio 


r  charpe  on  property 

has  not  received  the 

exists  even  thoujuh 

d  and  a  receipt  Is  in- 


24 


l.<;'  IIY    CAfii:.-   SlMl'LIFIEtt. 


sAMi:^-r('h'('iL\sf':s  uv  rursTEES. 


KEECH    V.  SANI>lOKl>. 

[Sel.  C.'as.  CU.  (11 :   1  Wli.  i  Tml.  I'<1.  C'as.  K<i.  4C..] 

T\w    most    Viihml.'.'    of    the    worldly    goods    which 
Kooch,  Sr.,  U'l't  to  nis  sou  and  hi'ir  was  the  lease  of 
Ruiiiford  Market.     This  son  and  hoir,  heing  an  intant, 
Kcec-h,  Sr.,  bcquoathodtho  lease  to  his  friend  Sandford, 
to  hold  in  trust,  for  said  son  uud  heir.     The  time  ciimo 
when  the  lease  was  about  to  expire,  and   Sandford  ap- 
plied to  the  lessor  for  a  renewal  of  the  lease   for  the 
Wuv.A    of  the  infant  ;   hut  the  lessor,  not   wishing  to 
have  any  dealings  with  infants,  whose  contracts  are  not 
always  iVnidinir,  refused  to  renew  it.     Then  it  was  that 
u  happv  tlxmsiht  struck   Sandford  :   '•  If  young  Keech 
ran  not  have  the  lease,  why  can    not  1?     1  have  cer- 
tainlv   d(.ue    mv  duty   in  asking  it   for  him.     Now,  it 
seems  to  me  that    I  am  not  doing  anything  wrong  in 
gettin-  it  for  myself,  if  I  can."     He  got  it  for  him- 
self,  hut  when  th«'  son  and  heir  heard  of  it,  lie  brought 
a  suit  aiiaiust  Sandford  to  have  the  lease  assigned  to 
him,  and  was  successful.     The  court  held  that  a  trustee 
can  not  act  or  contract  for  his  own  beneHt  in  regard  to 
the  subject  of  the  trust,  and  that  the  advantage  of  all 
that  hedoes  about  the  trust  property  accrues  to  the 
cc^fil  qn,'   (rust,  if   the   latter    desires   it.      "Though 
there   was    no   fraud   on    Sandford's    part,    he    should 
rather  have  let  tiie  lease  exi)ire  than   to  have  had  the 


EU..VV   CASKS    SIMrMKIKI). 


25 


EES. 


;..MM.  to  uiiuM'lf.  This  umy  sri-m  hard  Ihiit  the  tnisteo 
i-  ihi-  oiilv  person  of  all  iiiaukiiid  who  iiiidit  ii"t  have 
,1„.  l,.|,s("":  but  it  is  very  proixM-  that  rule  should  be 
-nictiv  pursued,  aii<l  not  in  the  least  relaxed  " 


.  4(!.] 

)ods  which 
he  lease  of 
;  an  infant, 
1  Sandford, 
!  time  eamo 
indford  ap- 
iso  for  the 

wishing  to 
acts  are  not 
.  it  was  that 
)ung  Keech 

1  have  cer- 
n.  Now,  it 
\\<jr  wrong  in 
t  it  for  hini- 
,  he  l)rought 
assigned  to 
hat  a  trustee 
in  regard  to 
ntage  of  all 
•rues  to  the 
"  Thougli 
,  he  should 
ave  had  the 


(•( 


FOX  V.   MACKllETH. 

[•J  Bro  C.  C.  100;  •_'  Cox,  :V.'0;  1  Wh.  &  Tii.l.  Ld.  Cas.  K'l.  116.] 

Mr.  ^hickretli  being  a  trustee  for  one  Fox  of  certain 
,,roi»"rtv,  agreed  to  buy  it  from  him  for  the  sum  of 
l';?!t,oOO,  and  Fox,  being  rather  hard  up,  was  glad  to 
,,,nsent,  and  signed  the  deeds  conv  '■  u"  his  property 
to  Mackreth.     Fox  was  (luite  pleased  when  he  pocketed 
ll.e  monev,  and  continued  to  think  he  had  done  a  good 
Mroko  of' business  until  he  learned  that  Mackreth  had 
Mibseqnentlv  sold   the   very  sante   i)roperty  to  a  Mr. 
Pane  for  .£."^n, .-)()().     Then  Fox  was  wroth,  and  filed  his 
bill~in  chancery,  clanning  that  he  was  entitled  to  the 
little  profit  which  Mackreth  had  made  so  easily.     Ho 
-ot  it,  the  court  deciding  that  Mackreth  having  pur- 
chased the  estate  from  his  cestui  que  trusf  while  the  re- 
lation of   trustee  and  ceshii   que   trust   continued    to 
subsist  l»etween  them,  and  without  having  communi- 
rated  to  Fox  the  value  of  the  estate  purchased  by  him, 
he  must   be  declared  a   constructive    trustee    for  the 
henetit  of  Fox,  as  to  the  profit  produced  by  the  sale  to 
Page. 

Both  the«e  cases  are  t)ase.t  on  the  rule  that  a  trustee  must  not^ 
,nake  anv  profit  out  of  his  trust,     l.-onnerly,  in  Knf;land,  this  rule 
was  carrkHl  so  far  a«  to  prevent  a  irustoe  from  r.'covering  auythinR 
for  his  trouble  an.l  reKponsil>ilily  i.i  tlie  care  and  management  of 


T 


.J,;  Kl^llTY    CASI-.S    SIMI'MIIKD. 

L  K.,  UUT.  m.t  this  ml.,  has  in  m..r.-  n.o.ieru  times  been  relaxed 
au,l'trust«..s  au.l  other  li.ludaries  in  this  cou,.try  are  rnt.tle.l  to  a 
compensation  for  their  services.  In  fa.t,  th..  .xpenem-e  of  th- 
a  r.e  luvn.an  at  the  present-day  is  that  the  ohl  rul.  ha«  bee 
n.v,.rs...l,  and.  >vhereas.  forn.erly  the  ,.././  v-  trust  ";->  ^^  «^' 
..vrvthin^and  the  trnstee  nothing,  the  former  now  gets  nothl.ur, 
i;.;tue  letter  everything.  This  new  favorite  «f  eo..U<  .^  enuit^ 
is  usimllv  St  vied  a  "  receiver,"  -  a  very  ai>propriate  desti  i   t  on 

N.  vertheh-Bs,  trustees  (and  the  rule  extends  to  all  in  a  flduo.ary 
position,  such  as  executors,  attorneys  an.i  agents)  "'"^t  "ot  <  o 
anvthiuK  inconsistent  with  the  relation  they  occupy  as  Keech  t. 
S  ndford  abun.lantly  shows.  If  they  do.  the  pro.it  they  make  w  1 
;,,  held  by  them  as  a  constructive  trust  for  the  bene.it  of  the  re.tm 

""'nic'uround  of    the  decision  in  Kox  r.  Mackreth  was  not  that 
Mackreth  had  purchased  the  property  fron.  Kox  at  an  --f^^^^' 
but  that  he  had  purchased  it  from  him  Wu7.  tl^e  '•''<''-';  ''{;'^^;^ 
an.l  cestui  que  trust  c  mtUnn-A  to  subsist  between  then.,  and  without 
„avin«  communicated  to  Fox  the  knowledge  of  the  value  of  the  es- 
tate  which  he  had  acquired  as  trustee;  for  if  the  relation  of  t  us 
and  c.stui  qu,  trust  had  been  clearly  dissolved,  and  Mackreth  had 
made  Fox  fully  acquainted  with  the  kuowledj:e  which  he  had  ac- 
quired <.f  th.'  N-alu..  of  the  property,  tlie  purchase  woul.l  not  have 
been  set  aside.    A  trustee  can  purchase  from  a  cestui  ^ne  trust  who 
Is  sui  juris,  and  has  .lischarged  him  from  all  the  ohim.uio.is  which 
attached  to  him  as  trustee;  but  even  then,  any  such  transaction  w.U 
Loviewcl  bv  the  ...urt  with  jealousy,  and  the  trustee  must  show 
that  there  is  a  clear  and  distinct  contract,  ascertained  to  be  such, 
after  the  fullest  cxaminati.)n  of  all  the  circumstances,  tliat  the  ces- 
tui uuc  trust  iuleud.-d  the  trustee  should  buy,  an.l  that  t.iere  is  no 
frau.l.  concealment,  ..r  possible  advantage  taken  by  the  trustee  of 
any   information   ac(,uired  by   him  in  his   character  of  trustee. 
Snell's  K'l.  !T3. 


Ill: 
li;i 
111 
re 

:'l 
If 
(i 
S 
ll 
t. 
ii 


K.IJIMTY    CASKS    SIMrl.IKIKD. 


;    •_'  Wll.  &TU(i.  Lli 

imes  been  relaxed 
are  <'iititU'<l  to  a 
i'X|>erii'iK'e  of    tin 
oil)  rule  has  boei! 
tnist  UM'il  to  sif 
now  gets  iiothlnj:, 
)f  courts  of  equit) 
ate  ilescription. 
to  all  in  a  fiduciary 
ints)    must  not  do 
•cupy,  as*  I\e«cit  V. 
oHl  they  make  will 
)enetit  of  the  rfftni 

kreth  was  not  thai 
;  at  an  undervalue, 

rtlatinii  of  trustee 
1  them,  and  without 
the  value  of  the  es- 
i;  relation  of  trustee 
,  and  Mackreth  had 
;e  whi'-h  he  had  ac- 
iise  would  not  have 
a-stiii  line  trust  who 
e  ohll^atioiis  which 
iuch  transaction  will 

trustee  must  show 
!rtaincd  to  be  such, 
stances,  that  the  ces- 
ind  that  t.iere  is  no 
ten  by  the  trustee  of 
aracter  of  trustee." 


fVIiCIIASES  FR&M  TRUSTEES. 

ELI.I0T  V.  MERRYMAN. 

[Barnard.  Ch.  78;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  64.] 

Thomas  Smith  devised  his  real  and  poMoiial  estate  to 
his  friend,  Goodwin,  in  trnst  (or  charged  with),  the 
n.vment  of  his  deMs   and   legacies.     Goodwin  sold 
u.osl  of  the  realty  and  personalty  to  Merryman,  and 
..reived  the  consideration  from  him  ;  but  neglected  to 
,nnlv  it  to  the  pavmeut  of  Smith's  debts.     The  lat- 
ur-s  creditors  did  not  like  this  .sort  of  thin-,  and  as 
(ioodwin  was  a  man  of  straw  they  sought  to  toll.>w 
S,„itirs  lands  into  Morrvman's  hands,  on  the  ground 
,h,U  Merrvman,  purchasing  from  a  trustee,  was  bound 
,.,  see  to  the  application  of  the  purchase  money.     But 
i„  this  contention  they  were  nnsuccesstul.      The  court 

licld  :  — 

1  That  where  real  estate  is  devised  to  trustees  upon 
trust  to  sell  for  pavnient  of  debts  generally,  or  charged 
with  payment  of  debts,  the  purchaser  is  not  bound  to 
>ec  that  the  money  is  rightly  applied. 

2.  That  where  real  estate  is  devised  upon  trust  to  be 
-old  for  tlie  payment  of  certain  debts,  mentioning  to 
wliom  in  particular  those  debts  are  owing,  the  purchaser 
,v  bonnd  to  see  that  the  money  is  applied  in  payment  ot 

those  debts. 

•  3  Tliat  a  purchaser  of  iea.sehohl  or  other  personal 
,  .tate  is  never  liable  to  .see  to  the  application  <.f  the 
,„Hvhase  monev  -  .•sept  iu  .-ascs  of  fraud  -  b-cause 


2H  KQI  ITY    CASKS    SIMI'MIIKT). 

the  oxn  utors  iire  ll.o  proiuT  p.-rsoiis  tl.at   l.y  luw  luiv. 
j,„,  ,„„,,,,  ,„  .lis,,o.(.  of.  testator's  iKTsoniil  estate. 

•n...  ,.,,„„•  V'"-  truH  was  s..  f.MH.al  a  f^ivorit.-  with  c.,urt«  of  .quity 

thMi  tl,.y  soufiUt  .,.v,-v.M-,vnK.aMS  to  protect  him  against  the    ra>n 

hetruHtee:   Th.refor..  th.y  hcUl,  that  where  he  was  mention,  .1 

Z  'u.vise  as  a  iKM^U.-iary.  the  purchaser  of  tru.t  property  f  on, 
the  trustee  was  hound  to  see  that  the  money  was  properly  appu  ,. 

a.conianco  with  the  trust.  This  .loctrine,  however,  was  a  few 
V  r  ago  repealed  in  Kn.land  i.y  Parliament  -  for  it  was  fouud  .o 
bear  too  hard  on  purchasers,  and  to  unduly  hamper  the  ransfcr  o 
pl-operty.     The  statute  of  -••-•  and  23  Vict.  c.  ;!5,  sect.  T^,  provide. 

""^^Ti^ln.Z  n,lr  payment  to.  and  the  receipt  of,  any  person  t.. 

,vho,n  anv  purchase  or  morOjar  »"""-.'/  ^^l"'"  '^^  ''''•^'^""=  "»'""  ''''^  "" 
s    or  "implied  trt>st.  shall  c!fectnaUy  discharge  the  P^'"on  pay- 

r,he  same  from  seein,.  to  the  application  or  I.ein,  answerable  for 

,u.  misapplication  thereof,  unless  the  contrary  shall  be  expressly 

.,,..lared  by  the  instrun.ent  creating  the  trust  or  secunty.       It  ,, 

also  enacted,  bvM  and  :.4  Vict.  c.  H:..  sec,,  l'^.,  as  follows:  "The 

receipts  in  writing  of  any  trustees  or  trustee  for  any  money  payabl. 

.  ,  u'n  or  him.  bv  reason  or  in  the  exercise  of  any  trusts  or 
p^wl";;  re",ose.l  or  veste.l  in  the.u  or  him,  shall  be  su.licieut  d.- 
-liarKes  for  the  money  therein  expressed  to  be  received,  and  shah 
effectually  ex..nerate  the  persons  ,mying  such  money  from  seeing  to 
thea,>plicalion  thereof,  or  frou,  bein,  answerable  for  any  loss  or 
mi'^application  llicreof."  .       .     ,, 

I„  the  United  Slates,  the  eMUiiable  doctrine  of  seeing  to  the  ap- 
plication  of  the  purcha.se  money  was  never  favored,  and  the  d.s- 

inoirn  between  trusts  for  the  i.ayment  of  debts  generally,  and  for 

he  payment  of  particular  debts  is  not  recogni/.ed.  The  purchaser 
in  this  country  is  not  bound  to  see  to  the  application  of  the  purcha.He 
money;  and  is  not  responsible  for  its  misapplication  in  the  absence 

of  fraud. 


Kl^UliV    lAStS    SlMi'l.lKlKU. 


2\) 


at    hy  l:i\v   hiivi' 
•soiiiil  estate. 

ilh  court w  of  f<iui'y 
n  an-ii"^t  the  frai.il 
;  he  wasraentioiu  1 
trust  property  from 
■as  [jroperly  uppl'n  '■ 
lowevt'r,  was  a  ftw 
for  it  was  fouud  t" 
nper  tlie  transfer  ot 
5,  sect.  U';!,  proviek-* 

t  of,  any  person  to 
layable  upon  any  ex- 
Tfie  the  person  pay- 
heins  answerable  lor 
■y  shall  be  expressly 
or  security."  It  is 
:»,  as  follows :  "The 
ir  any  money  payable 
,sc  of  any  trusts  or 
lall  be  sutllcieut  dis 
le  received,  and  shah 
money  from  seeing  to 
rable  for  any  loss  or 

•  of  seeing  to  the  ap- 
favored,  and  tlie  dis- 
lits  generally,  and  for 
ized.  The  purchaser 
nation  of  the  purchase 
icatiou  in  the  absence 


lit: 


SPOXSIBIUTY  FOR   ACTS    OF  CO-TRUSrEE. 


TOWXI.KY   V.   SllKUBOKNK. 

[Brirtg.  35;  2  WU.  &  Tud.  L.l.  Cas.  Iv,.  MO.] 

\     B     C\,  aii.l  D.  wi'vo  trustees  of  scmo  leasehold 
pnMnises.'      A.  a.ul    B.  oollceted   iho  ven-     foi"  the  tirst 
vearan.l  a  half,  aiul  Hi.-ned  aoq..itta.iees  thereh.r    i.ut 
•,Vo,„  that  period  the  .e.its  were  unifonnly  received  l.y 
,„  assignee  of  C.     The   liability  of  A.  and  B   d.nmg 
,1,.  first  year  and  a  half   wa.s  not   disputed;   l.t.t   the 
nu.stio.i  was  raised  whether  they  were  not  also  eharge- 
ahl.Mvith  the  rents  which  had  aeen.ed  .snl.se.iuently. 
hut  had  never  co.ne  to  their  hands.     After  long  and 
nuitmc  deliberation  the  judges  resolved  :  — 

1  That  where  lands  arc  e<.nveyed  to  two  or  more  on 
trust,  and  one  of  the.n  reeeives  the  profUs  h>s  eo- 
,n.4ees  .hall  not  be  charged  theref..r,  nnless  there  has 
lK.0,1  fraud  in  the  matter,  for  they  being  joint  te.iants 
,„•  tenants  in  eom.non,  any  one  of  them  may.  by  law, 
receive  all  of  the  profits. 

o  That  where  there  was  anv  fraud  or  evil  intent  m 
the  trustees  permitting  one  to  reeeivo  the  whole  protits, 
the  others  .should  be  eharged.  though  they  received 
nothing. 


30 


KginV    lA.SIS    M.MI'I.IMKU. 


IJItICK   V.    STOKKH. 

[11  Vus.  ;ii;»;  2  Wh.  &TU.I.  Ld,  Ca.s.  Kq.  877.] 

Ill  tliis  case  the  (juoslioii  w:is,  wliotlicr  ji  tl'iistoe 
should  l)e  (liariTi'd  witli  ccrliiiii  puirliiiso  luoiu'V  wliioh, 
though  ho  liiid  joiiu'd  in  tiie  receipt,  h;id  l»eeii  reeeived 
by  his  oo-tnistee.  Tho  eourt  hohl,  that  under  the 
partieuhir  cireumstanees  of  Uie  caHc,  lie  was  liable  to 
bo  eharncd,  th(!  sah;  Itoiug  uunceossarv,  and  he  permit- 
ting his  co-trustee  to  keep  and  act  witli  tiio  nionev 
contrary  to  the  trust ;  but  that  he  should  not  bo  charged 
in  respect  of  the  interest  of  one  of  the  centni  que  truM 
who  had  notice  of  tiie  breach  of  trust  and  acquiesce<i 
therein. 

The  court  laid  it  down  that  there  is  this  great  dis- 
tinction  between  trustees  and  executors,  viz.,  that, 
though  where  trustees  or  executors  join  in  a  receipt, 
privia  fade  all  are  presumed  or  considered  to  huvo 
received  tho  money,  yet  it  is  competent  for  a  trustee  to 
exonerate  himself  by  showing  that  the  money  acknowl- 
edged to  hava  been  received  by  all,  was,  in  fact, 
received  by  one,  and  the  other  joined  only /or  cnn- 
fonniti/;  but  an  (xerutor  cannot  do  this,  for  it  is  not 
necessary  for  him  to  join  in  the  receipt  (as  it  is  in  the 
case  of  a  trustee),  and  therefore  if  he  does  join,  he  is 
to  bo  consitlered  as  assuming  a  jjower  over  the  fund, 
and  therefore  answerable. 

From  tlu'  two  precciliug  cases,  it  will  Ik-  sueu  that  as  a  general 
nilo  a  trusti'i!  is  not  responsible  for  tlie  conduct  of  his  co-trustee. 
But  any  fraud  or  improper  dealin!,',  or  fjro.ss  ne-li-euce  on  his  part 
will  render  him  respon^iible,  as  for  example,  if  he  were  to  stand 


riMi 


I.U. 


r,(,tl  ITY    CASKS    SIMI'I.IKIKD. 


;;i 


.  Kq.877.] 

Iiotlici-  a  trustee 
ISO  nioiu'V  wliioh, 
!ul  boon  rooeivod 
tliat  mulor  tlie 
Jio  was  liable  to 
',  and  he  pernut- 
u'itli  tlio  monov 
Id  not  bo  cliarjrod 
0  cf'sfid  que  trust 
•t  and  acqniesce<i 

is  this  orreat  dis- 
Jtors,  viz.,  that, 
join  in  a  rocoipt, 
isidoi-od  to  have 
it  for  a  trustee  to 
nionoy  aoknowl- 
I,  was,  in  faoi, 
ed  only  for  cou- 
his,  for  it  is  not 
)t  (as  it  is  in  the 
'  does  join,  he  is 
■r  over  the  fund, 


'iv  ;iMil  si'i-  a  hiviii  li  of  trust  coininittfil  l)y  his  ci)-tr\isti'»',  or  if  lie 
licrmits  him  to  iltul  with  tlie  trust  money  contrary  to  tlie  trust. 
WhiTe  there  arc  several  trustees  tliey  should  all  concur  In  the  busi- 
nrtrt  of  the  trust.  In  the  matter  of  public  trusts,  however,  a 
iii;iji)rity  may  act  anil  bind  the  others. 

A^  to  the  duties  and  responsibilities  of  trustees,  see  Keech  v. 
Saiulford,  and  Fox  v.  Macl<reth,  ante. 


:en  tliat  as  a  general 
let  of  Ills  co-trustee, 
gli^ence  on  his  part 
if  he  were  to  stand 


Kl/L'I'l'V    CAM'S    silMl'I.llIKI). 


WILLS. 


ASHIUKMIlt  V.  >lAC(iriHE. 

[2  Hro.  C.  ('.  liiH;  I'  \Vh.  &  Tiul.  l.tl.  C'as.  i:(i.  L't;7.] 

Ill  Soi)tcml)fr.  177S,  Mr.  ,Miic<:uirt«  luailo  ]m  will. 
Ain()ii<r  otlu'i-  thiiijrs  lu'  hiMiui'atlu'tl  to  Willimn  lioawc-, 
a  natural  child  of  his,  at  tliat  timo  at  school,  "  iiiv 
capital  stock  of  £1,()0(»  in  the  East  India  Company 
stock."'  Mr.  Maciruiro  at  this  time  was  possessed  of 
1' 1,000  in  Kast  India  .stock,  but  l»ofore  hi.s  death  poM 
it  all  out.  Williaiu  insisted  that,  notwithstandiiiLr 
this,  ho  onjrht  to  receive  that  much  from  his  father' > 
estate,  hut  Mr.  Macguire's  repr(<sentatives  did  not  sc<' 
it  in  that  liulit,  and  when  ho  wi-nt  to  court  about  it, 
the  Lord  Chancellor  decided  tiiat  he  was  not  entitled  \i> 
anvthiuLT,  as  the  l)equest  hcinir  <>f  n  specific  thinjr,  it> 
alienation  hvthe  testator  e-Ktinifuished  the  son's  cdaiin. 


M 


1 1 1.  AN  I)  V.  >IAYO. 

[i  Mil.Ch.  4S1.] 


Even  Chancellor  Bland,  of  Maryland,  could  not 
make  a  will  clear  enough  to  satisfy  his  heirs  without 
ffoin"'  into  court  to  tiud  out  their  riirlits  under  it.     He 


\:i){  ITV    (.\,-l.S    MMI'l.Il  ll'.M. 


33 


HE. 

tuailo  liiis  will. 
rilli;un  Bouwc--, 
t.  school,  "  iiiv 
luliii  Comi)iiiiy 
IS  possessed  (it 

his  <le!ith  PoM 
lotwitlistandiii;: 
)iii  his  t'athor'> 
ivos  did  not  S('<' 

court  about  it, 
s  not  entitled  \i> 
ecitir  thinjr,  its 
Lho  son's  claim 


ind,  could  not 
s  heirs  without 
3  under  it.     Ilf 


had  made  three  diU'ereni  devises  of  hin  property.  1. 
llcMlcvised  "  all  his  pi-()[)erty,  real  and  personal,  e.\- 
rrpt  Ids  Bland  Air  estate,"  to  his  wile.  2.  He  devised 
liis  Bland  Air  estate  to  his  daiijxhter.  3.  lie  (h-vised 
all  his  books,  historical  and  hioirraphieal,  and  K(>es" 
i;neycl()[)iedia,  to  his  son-in-law,  ("apt.  Mayo.  It  hap- 
peiicd  that  the  ( Miancellor  lel't  some  debts,  and  the  ques- 
tiim  was  out  of  whoso  legacy  should  they  lie  i)aid. 

riio  coin-t  decided  that  the  debts  must  come  out  of 
the  devise  to  his  wife,  which  must  be  exhausted  before 
llu'V  could  resort  to  the  dauirhter's  and  the  son-iu- 
law's  becpiests. 


SMITH   V.  I.AMPTOX. 


[S  Diiim,  (■.!!.] 

Martin  Smith,  of  Kentucky,  becjueathed  to  his 
three  sons  $500  i-acli,  and  to  his  daughters  $250  each, 
•'  in  bank  notes  of  the  liank  of  Kentucky  out  of 
moneys  of  that  description  now  in  my  hands;"  and 
directed  his  executor  to  invest  the  same  in  land  for  the 
Use  of  the  legatees.  On  the  day  the  will  was  made  he 
'hlivered  to  the  e.Kecutor  notes  of  the  Bank  of  Ken- 
tucky to  the  amount  of  the  legacies  to  the  i)oys,  which 
the  executor  invested  for  them.  But  he  delivered 
iiniie  for  the  girls,  and  at  his  death  he  was  not  the 
iMvner  of  any  notes  of  the  Bank  of  Kentucky. 

Under  these  circum.'tances,  if  this  were  a  speeitic 
Irj^ucy,  it  was  clear  that,  according  to  the  luh^  in  Ash- 
iiurner  u.  Macguire,  the  dis|)osal  by  Martin  of  all  the 
notes  he  had  for  the  benefit  of  the  boys  was  an  ademp- 


:il 


Kf^lITY    CASKS    SIMI'I.II'IKI). 


lion  ..r  till!  l<':,':ic'u-s  \n  tin'   s.'ii-U.  uikI  tliose  lo<,nK'ies. 
Ilici-cfon-.  I'liil.-.l.      lint  one  nf  tlio  jiirls  Lroiiizlit  a  Ruii 
ill  c'luiiicrrv  for  lu-r  shiirc,  and  was  succcssrni,  on  tli' 
irroniid  tlial  this  was  not  a  Kj)vrijii\  l>ut  ii  th-monstni' 
tin-  Iciraov.      "A  luMjiit'st,"  said  lh«'  conit.  "  of  a  ci-r- 
lain  sniii   of  money  >  out  of."  or  '  to  I'c  paiil  out  of/  :> 
di'siirnatiMl    fiiml,  or   note,  or   i)on<l,  or   a   l»i'<iii<'sl    oi 
stock  *  oiil  of  a  LTioatt'r  anioiint  of  tiit?  liko  stock,  ha- 
l>«'cii  jiciicrallv  considcriMl  as  a  dcinoiistrativc   lci;ac\ 
plcdiiinu'  a  particular  fund  as  a  collateral  security,  and     I 
beiiii;  as  to   that  sccnrity  merely  directory,  but    not 
(lei)eiidinL:  for  its  validity  or  value  on  the  snlHcieiu-y  or 
oxi>tence    of    the    fiinil    thus  especially  dodieated    for 
securing  it .'" 

BL'(iuc'Hts  or  U'liiicii's  .ii-"  cUisscil  under  Uir.'o  lieads  ;   (1)  Keiieral, 
('.»)  spccillc,  anil  (ii)  ilomonslriitive. 

1 .  A  fjfiieral  li'ijacy  is  one  wliicli  does  not  amonnt  to  a  beijuesi 
of  any  particular  tliin;^  as  distinuulsliod  from  all  others  of  the  sanif 
kind;  e.,j.,  If  Mr.  Honncr,  of  the  New  York  IMgfr,  were  to  be 
quoath  to  his  friend  and  contributor,  Henry  Ward  Beecher,  ahorse, 
this  would  be  a  ^'eneral  lo^aey.  A  general  legacy  is  sometimes 
termed  a  "  pecuniary  "  le^'cy. 

•>.  A  speiille  legiiey  is  a  beipiest  of  a  purlicular  thing  or  sura  of 
money,  or  ilel)t,  as  distinguished  from  all  otlicrs  of  the  same  kind; 
e.<j.,  Mr.  Bonner  beiiucaths  his  horse  Dexter,  — this  is  a  specific 
legacy. 

3.  A  demonstrative  legacy  is  one  which  Is  in  its  nature  a  general 
legacy,  but  there  is  a  particular  fund  pointed  out  to  satisfy  It;  e.g., 
Mr.  lionnor  bequeaths  "  a  horse  out  of  my  stable,"  this  Is  a  demon 
strativo  legacy. 

\  man  was  once  asked  his  occupation,  and  he  answered  that  h.- 
was  a  ligutee  — a  rather  pleasant  situation  to  occupy  as  things  go. 
But  there  Is  a  considerable  choice  ijctween  the  three  kinds  of  lega 
cies  just  mentioned.  The  trouble  about  a  general  legacy  la  that  if, 
after  the  payment  of  the  testator  ikbcs,  there  are  not  sumdent  assets 
to  pav  all  the  legacies,  a  general  legacy  will  abate,  but  a  speciil-- 
le-'acy  will  not;  i.e.,  the  party  who  is  fortunate  enough  to  be  enti- 


^m 


i;<,ii  1 1  V  (  \>i>»  MMi'i.ii  ii;i». 


.)■> 


Dlllillt  11  Rllil 
sl'ul,  on  till 
I  th'iiionstni- 
,  '•  of  il  ci'i- 
i(l  out  ol"/  :i 

Itl'llUfSt     ol 

M  stock,  ha- 
,itiv(i  lo<X;i('\ 
ocurity,  and 
iry,  but  not 
iiilHciiMicy  or 
edic'iitod    I'oi 

Is;   (I)  Reneral, 

int  to  a  betiuest 
liers  of  the  sann' 
rr,  were  to  be 
Jeccher,  ahorse, 
;y  is  sometimes 


t  -  i\  to  II  sin'citlc  l)i'i|ii>'sl  iiiii«l  be  lir-t  p;iiil  in  full,  mid  llii-  jii'iirral 
;.  jitei'  will  h;ivu  to  bf  sntistlcd  witli  wluU  is  left,  even  thi>ii};li  it  is 
.11, 'v  one  pur  cent  of  the  lunoiint  of  his  lesjaey.  This  was  the  reason 
tilt  It  was  held  tliat  ("haiieellor  Uland's  snn-ln-law  and  daiiuliter 
>'uMild  talio  tlieil'  be(|ilests  free  of  tin;  testator's  debts  —  tlieirs 
»■  re  spreillc  beijilests. 

On  tlie  otlier  hand,  a  specillc  Unaey  lias  its  dra»vl)ai'l;s,  fur  if  the 
'.  -i.itor  should  happen  to  alienate  the  property  ilurinn  his  lifetime, 
'  r  if  ttie  tliliiL;  that  lie  has  devised  cannot  bi;  found  at  his 
ill  ath,  the  le^atet;  will  not  be  entitled  to  anytliin;;  out  of  the  testa- 
t  I's  general  estate  —  because  notliiiiij  but  the  specilic  lliinjf  can  be 
:::ven  to  him.  This  was  the  trouljle  with  William  Heaw.  s's  le;;acy. 
S.I  If,  In  the  illu>-trallon  ulven  above,  Mr.  Homier  should  sell  Dexter, 
■  r  tlie  horse  should  be  killed,  l)efore  his  death,  the  lej^atei'  would 
L'l  t  nothing. 

^H\  the  whole,  tin-  position  of  a  jiarty  entitled  to  a  demonstrative 

r.'acy  Is  the  best.  This  kind  of  a  le^aey  has  the  advantatjes  of 
l>'th   the   others  without  the  drawbacks   to   either.     It  is  so  far 

11  the  nature  of  a  speciib;  leijai  y  tiiat  it  iimst  be  paid  first,  and 
liny  deficiency  of  assets  must  fall  on  the  general  legacies;  and  It  is 
(■')  far  like  a  general  legacy  that  the  alienation  or  non-existence  of 
i!ie  property  pointed  out  as  the  means  of  satisfying  it  does  not  ex- 

inguishit.  Thus,  in  Mr.  Bonner's  beipiesl  of  a  horse  out  of  his 
stable,  Mr.  Bonner  might  sell  hi.s  entire  stable  before  he  died  yet 
II. e  legatee  could  call  on  the  executor  to  buy  him  a  horse. 


thing  or  sum  of 
'  the  same  kind; 
his  is  a  specitlc 

nature  a  general 
,0  satisfy  it;  e.g., 
'  this  is  a  demon 

nswered  that  hf 
upy  as  things  go 
•ee  klnda  of  lega 
1  legacy  Is  that  if, 
)t8ufncient  assets 
ite,  but  a  specitlc 
uough  to  be  enti- 


'M] 


KQUITV   CASKS   si  Ml'l.l  I  I  i;ii. 


l)<).\All(t  MninJ>   CAl  MA. 


\v.\i:i>  V.  11  |{m:i{. 

[•2  Vcs,  i:!i ;  I  wii.  .«i  Tii'i.  IaI.  ("as.  i:>\.  imr..] 

]i)  till'  lioii^t  Imlil  of  I'M  \\iHi;iiii  Fly,  lived  Jolm 
Mosuly,  Jipour  irliilion,  wlio  was  ^liuleiioiiirh  to  act  a^  a 
sort  ol'lKHly  MTVaiitfti  Iii><ricli«'r  relative.  Wiliiaiu  Fl> 
was  olio  tlay  talu'ii  very  ill,  and  expeetiiij;  to  die,  .-^ai  i 
to  his  rcMainer,  "  Mlosely,  1  is'wv  you  all  the  ;i;(»od.s  aiiii 
plate  in  this  Jioiisc,''  'I'heii  iiniiii;'  to  his  desk,  ho  took 
t'limi  it  thivo  papers  and  t^aid,  "  I  jrive  ymi,  Mosely. 
tiieso  papers,  whiili  ;iie  receipts  for  South  Sea  Aiiiiui- 
tios,  I'lid  will  serve  yoii  alter  I  am  de;id." 

WiUiaiii  Fly  diod,  niitj  Mox'ly  tih'il  a  ImII  in  chancery 
elaimiii"'  the  i^oods  and  the  stock  as  a  ilomillo  innrli" 
cdusd .  1)111  Imj  did  not  succeed,  lorllm  court  held  tlinl 
to  a  valid  tril't  (d'this  kind  d'divcry  was  necessary  ;  lh.it 
tiie  ejoods  aiiil  plate  had  never  Itt'eii  deliveretl,  and  thai 
the  delivery  ot"  the  receipts  wa-  no  >iiflieient  dtdivery 
ot  1  he  stock. 


A  iliiniit{o  miirih  r<i)isii  ']<  a  i;ift  nimli'  in  -iicli  a  >tato  of  iljtu's.t  or 
exppi'tution  of  ilcatli,  a^  warr.ants  ;i  siipixc-ilion  lliat  it  was  made  in 
cDutumplation  of  llml  event.  Such  a  disposition  of  property  occurs 
often  wlien  ii  man,  wlio  lias  put  off  niiikiuj;  his  will,  tliuls  that  lie  ha' 
not  time  to  execute  .so  fonniil  a  document,  or  Is  loo  far  irone  even 
to  si::n  his  mime.  'I'o  a  valid  fi'iii  of  this  kind  tliere  are  four 
essentials. 

I.  It  mu.1t  hr  m'fli'  in  erpiirtntmu  "/  d<nth.  — The  diiiit;er  of  death 
must  be  close  at   hand.     A  IVimsylvaniaii  eulisteil  for  thu  war  in 


Kii^irV    <A»I  S    MMIM  II  l|-.l>. 


'.'05.] 

V,  lived  .loliii 
lilh  to  act  a.i  a 
William  Kl^ 
<;  ti)  (lit',  i^aii 
:lie  jiood.-*  iiiiii 
desk,  ho  took 
y<»ii,  Moselv. 
h  S(';i  Aniiui- 

11  in  I'haiu'ciy 
louatio  moi'ti< 
niirt  JM-ld  tliMi 
'(•("ssary  ;  tli.it 
I'l't'd,  and  thai 
rit'iit  deliveiv 


(lato  of  illnusH  (ir 
lit  it  WHS  iniidi'  ill 
f  pnipiTty  ocelli^ 
tliul.s  that  lie  lia- 
>()  far  iroiic  even 
I  tlicri;   are  four 

•  (iiiii;;i'r  of  'teatli 
•il  for  the  war  in 


,  iiiit  licfiiii' h«' vviiit  tu  till' fniiit  haiidi'il  ii  friiMiil  an  I'lurlope 
,,'  iinintf  iiot.'H  dill'  him,  to  civc  to  hi-*  nwcothearl.  roiir  irioiilii^ 
i(  .  r  111'  dird  111  llie  army;  yet,  It  was  hi'ld  tlial  llii-i  was  not  ti  nooU 
{tilt  ciiuKd  mortis,  lici';iii»r  not  iiiadi'  In  lil.i  last  Niidiiifii.Hor  In  hIii'hm 
,,f  ii;iu"«s  or  iircsmt  |u'rll.  (ionrliy  i>.  I,ln-'i'iit)iiili'r,  .'I  I'a.  Si.  ;i|.'i. 
li  i;  .1  Ulft  inadt' (liirliiif  ci^rfiiii' lllnrss  1-*  iiri'xunu'd  lo  \»'  ni.ide  in 
(■\|ifi'tatioi)  of  di'alli 

_'.   It  mimt  Uv  tnii'li'  nn  ruiiililiiiii  Hint  it  m  tn  '«■  iilinnlntr  niihj  in  aisf 

.  I  ,hc  (/.i/iiir's  it'itlh.  -~  If  lilt'  ilonor  rotovcr  li i  his  illni-ss,  tiio  clft 

1,  ,|.ft'aU'(l;  and  tln'ri'fori',  il  lii^i  inlcniioii  Is  tliat  it  sliill  Ix;  nl)so- 
.  r,  and  not  rt'coviTiiUlo  liy  his  owii  ad  hy  rcco\ii  y  from  illncsM, 
It  is  not  II  Rood  lionali" mortis  c<iiin<i.  In  an  ICns"'*''  *'*^*'  ^''"  ol)llj;co 
.ifii  bond,  live  dayM  boforu  hor  diath,  sitriH'd  a  nu-inorandnin,  not 
under  si-al,  which  was  iudi'rsL'd  ii|ioii  iIk'  liond.and  whiili  iiiii|iiirtod 
t.i  Iji'  an  nsj'lirninent  of  ilic  lioiid  iritlioiit  cnusitliTatinn  to  il  person  to 
whom  tlie  bond  was,  at  till!  sainu  time,  delivered.  Tlie  court,  haviujt 
1. .  idod  that  tho  transaetion  bcin^  liicoinplote  us  a  ulft  iiUirvifng,\l 
Miiid  givu  the  voluiiti-er  no  relief,  he  tried  to  claim  il  as  a,  daiMti') 
h,nrtis  cuKsii.     Hut  here  aijaiii  the  court  decided  ajialn^l  him.     "In 

■  iltT  to  be  nood  as  a  donittin  nmrtis  ciiunit,"  siiid  tin;  jud'^e,  "  liie  yift 
nii>t  liave  been  made  In  conlemplation  of  death,  and  inlended  to  lake 

..ff.'ct  only  after  the  donor's  death.     If  it  appeared,  however,  from 
•11.'  (  ircurastancesof  the  transaction,  that  the  donor  really  intended 

■  1  make  un  iininediatu  and  irrevocalil''  ^if-  <'f  'I"'  ''"I'ds,  iluit  would 
■i'-lroy  the  title  of  the  party  who  claims  them  as  a  ihnnttin  niortia 

/  /vfi."     Kd wards  v.  Jones,  I  Mylno  &  Cr,  2l'i;. 

.1.  Tlieic  muKt  hf  iiiiclivei-ij  of  til''  sulijirt  of  tlw  ijill  tn  t/n' dnni'i'  for 
his  own  H»e.  —  A  n**"*'  <l'>natio  mortia  caima  of  a  personal  chattel,  is 
iiiide  by  deliveriiii;  it  into  the  hainN  of  the  doime  or  hi.s  af,'eut. 
I!  il  a  delivery  to  the  donor's  ageuL  is  not  enoii;,'h.  In  Ward  i'. 
Tamer,  a  symbolical  delivery  (the  receipts  for  the  slock)  was  hold 
iKUlUcient;  bat  it  has  been  held  that  the  delivery  of  the  key  of  a 
n  x  is  Hulllcient  to  carry  its  coutenls.  .Jones  v.  Selby,  Prec.  in  Ch. 
III.  And  wiiere  the  thint;  is  a  ch(i!<c  in  wtion,  delivery  of  some  docu- 
■II  lit  essential  to  its  recovery  is  enouj;h,  Moore  v.  Dartoii,  4  DeO. 
.   Sill.  .■)li». 

4.   The  iloiiormmt  part  with  'ill  domiinon  over  the  (lift.  —  Xn  early 

i;ii;;Hsh  case  in  a  good  IMii       i""ii  of  this  rule.     A.,  beinj;  very  ill, 

ordered  a  bo-     con     ming  \\.  ui  iii;;  apparel,  to   be  carried  to  B.'s 

,use  to   '  i   to   B.     Ni-xt  day  H.  hroii'^ht  the  key  to  A., 

■,v  H)  desi  ,0  taken  baclN      lyiii;,' that  he  should  want  a  pair 


as 


Kf.HlTV    (  \^l.-<   SIMI'I.IIII'.I). 


of  J):iiits  nut  of  it.  "  In  the  rust!  of  a  doiinlio  vtDrtis  raurxi,'"  t-iiiil  111  ■ 
court,  "  possession  must  he  ininiediiitely  iiivcii ;  and  also  in  p.'irliir,' 
•villi  the  possession  it  is  necessary  tliiil  the  donor  slioula  part  wit  , 
the  dominion  over  it.  It  seems  rather  to  have  been  left  in  1!.'- 
care  for  safe  custody,  and  was  so  considered  !>y  lier."  Hawkins  r 
lilewitt,  L'  Ksp.  (;r,;i. 

Kijuity  docs  not  look  (.n  ^ifls  of  this  kind  witli  fuvor,  avoiding,  a-f 
th<y  do,  the  formalities  reiiuisite  to  a  M'.lid  will  of  propoity,  or  ii 
pift  iiil'  r  ririis,  Hnd  opeiiin'j;  so  wide  a  door  to  fraud  in  their  proof 
The  evidence  to  support  a  ihinatio  inortis  f '(»,•<■'(  must,  therefore,  In 
full  and  explicit.  In  New  York,  some  yearsa;:o,  oi.,>  who  liad  luirscil 
a  dyins  man  produced  his  watch,  and  claimed  to  have  received  ii 
as  a  };if'  "f  "li'^  kind.  But  this  did  not  fro  down  with  tin;  court,  for 
they  lielil  tliat  he  could  not  reiy  on  possession  of  the  watcliaBevi 
denco  of  delivery,  but  must  iiroduce  a  disinterested  witness  of  the 
transaction,  'Ise  lie  could  not  keej)  the  time-piece.  Sneckuer  v 
Taylor,  1  Kedf.  427. 

A  dnnntio  murtis  rausii  is  somethinji  like  a  legacy,  and  somcthint; 
like  a  gift  inter  vr'-in  It  resembles  a  legacy  in  these  respects,  viz  : 
(1.)  It  is  revocable  during  tlie  donor's  lifetime.  (2.)  It  may  hr 
made  at  law  to  the  doaor's  wife.  (;!.)  It  is  liable  to  the  debts  of  the 
donor  on  a  dellciency  of  assets.  It  resembles  a  gift  iiidr  riraa  in 
these  resjK'cts,  viz. :  ([.';  It  takes  effect  from  the  delivery  in  the 
donor's  lifetime.  (2.)  It  requires  no  assent  on  the  part  of  the  exe- 
cutor or  adiiiUiistrator  to  perfect  its  title. 


ilMi 


KyiMlY    CASKS    SIMI-I.IIIKI). 


39 


(,"  ^!lill  111.- 
>  in  piirtin,' 
a  part  wit  , 
li'ft  in  1!.'- 
Iliiwkinx  r 

ivoidiiig,  a-f 
pciiy,  or  n 
Ihoir  proof 
irrcfore,  In 
had  luirscii 
n'ceivfil  ii 
<!  court,  fur 
riitcliaBj'vi 
noss  of  llif 
Snockuer  r 

I  sotnctliinc 
pects,  viz  : 
It  may  l)i' 
ilcbis  of  tlic 
ttir  virus  in 

MT.V    ill    tilt' 

of  tlie  exe- 


(  o,vr/iA'..s7o.v—  • /-.(^r/y)'  i.odks  ox  tuat  as 
iKiXE  wiiicji  onrdT  tdbk  doxe.-' 


FLKTCHKlt   v.  A8l1lti:itM<:i{. 

[1  Bro.  ('.  C.  i;!?;  1  Wli.  v>t  Tud.  l,il.  Cm-.  1:i|.  8-.>i;.] 

.lolm  FletcluT  iiiiulo  a  will  l)y  wliicli  lie  dcvisccl  his 
n  al  estate  to  t  ni.stocs,  to  sell  tlio  siiiiie  iil'tci-  his 
willow's  (Icatii,  and  divide!  the 'j)roc(MHls  lietweeii  his 
-nil  and  danghter.  The  son  and  daiiirlitcr,  iiowcver, 
I'lith  died  in  the  widow's  lifetinu',  and  the  latter,  as 
ilic  son's  next  of  kin,  liecanie  entitled  to  the  property, 
it'  it  were  to  lie  considered  jxTsonally.  On  the  other 
hand,  the  son's  !ieii-at-law  claimed  this  share  a>  reiiltv, 
inrthc  reason  that  it  n.  d.  never  heen  sold  l»y  the  trns- 
iffs.  IJiit  the  court  held  that  this  did  not  matter; 
lliat  it  is  an  estal)l!shed  iirineiple  of  e(jijity  that  money 
ilirc'cted  to  l)e  employed  in  the  purchase  of  land  and 
land  tlirected  to  lie  sold  and  turned  into  money,  are  to 
lic  considered  as  that  species  of  property  into  which 
tlicy  are  to  !>■  converted  ;  and,  therefore,  in  this  case, 
the  veal  estate  having  been  ordered  to  he  sold,  it  lie- 
rame  pei'sonalty  (even  although  it  had  not  liccn  sold) 
and  went  aceorilingly. 

The  doctrine  of  conversion  wliicli  tliis  case  turned  on  forms  the 
lifst  illustration  cf  the  maxim,  "E(|uity  looks  on  that  us  done  which 
iai<;lit  to  lie  doiii  ."  Property  is  directed  to  lie  coiivortcd  ;  it  is  the 
I  (iiior's  intention  that  it  nhould  he  so,  and  ei|iiity  Ircals  liis  iiiten- 
•i  ill  as  carried  out,  even  though  actually'  not  so.     Coinersion  is  de- 


40 


ix/t nv  ca.nks  siMi'i.irir.i). 


flnotl  n<  "lli;it  cliiitijic  ill  tlie  niitiiR'  of  prop'Tty  by  which  i  >t 
cfrtaiii  puri)OM's,  ri':il  estate  is  considtTi'f!  ns  piTsonal,  ami  personal 
estate  us  real,  ami  traiisinissil)le  aii<l  (lesceiulal)le  as  siic'i."  To  if. 
feet  a  <oiiversioii  it  is  necessary  tlial  tlic  diivction  to  convert  I" 
imperative  ami  imf.  optional,  and  a  direction  to  convert  at  the  ri- 
quest  of  certain  parties  will  he  held  imperative  tinless  it  is  inserted 
for  tlie  purpose  of  ^'iviiifj  a  'liscretioii  to  those  parties. 

Followinij;  the  doctriiii'  of  conversion  comes  that  of  reconver- 
sion, wliich  lias  been  dellned  as  "  that  notional  or  imaginary  proces> 
by  which  a  prior  constructive  conversion  is  uiinulled  and  taken 
away."  Siie'l,  l'.i|- -"•'•  Tims  land  is  tfiven  upon  trust  to  sell  an  1 
pay  tlie  procee<ls  absolutely  to  A.,  and  conversion  here  taki^s  placf. 
hut  A.  can  say  he  pri-fers  the  ha'  and  will  take  the  land  —  this  l> 
reeoiiversion.  If  there  are  scvera.  nersons  interested  in  the  sub- 
ject matter  the  question  arises,  can  one  reconvert  without  the  con- 
sent of  tlie  other  or  others?  —  that  is  to  say,  llrstly,  laml  is  directeii 
to  be  sold  and  tln'  proceeds.jiaid  to  A.  ami  H. ;  and  secondly,  nionrv 
Is  directed  to  be  laid  out  in  tlie  purchase  of  laml  ft)r  A.  and  1!.;  i  . 
these  cases  can  A.  elect  to  tak<'  his  share  in  its  ori;:iiiaI  ipiality,  tli.i' 
is,  can  he  reconvert  witliout  li.'f  The  answer  is,  that  in  the  tlr>' 
case  lie  cannot,  but  in  the  second  he  (■.•in.     Snell,  \'a\.  'Mo. 


if 


EQLITV    CA.sKS   S1MI'LIIIEI>. 


41 


ly  by  which  f  >r 
nal,  mill  persoiKil 
IS  Mic'i."  To  if. 
OH  to  convt^rt  i  •• 
convert  at  the  rr- 
less  if  is  inserted 
■tics. 

liiit  of  rc'convcr- 
mamillary  pri>c(>-> 
lulled  ami  takiii 
I  trust  to  sell  aiil 
here  takes  plaet' . 
he  laud  —  this  s 
ested  in  ttie  suIj- 
without  the  con- 
;,  land  is  directcil 
.  secondly,  money 
for  A.  and  1). ;  in 
izinal  (juality,  that 
,  that  in  the  tlr^t 
\',i\.  -JOo. 


ACKH<>YI>   V.  SMITHSOX. 

[1  nro.  r.  ('.  r.u;?;  l  Wh.  .'(:  Tud.  I.d.  Cas.  F.i|.  .»7l'.] 

'•Loi-d  Kldoii's  foiluiie,"  says  Lord  C'AMi'ur.i.i.,  in 
|,i,  ••  Lives  of  till!  Chiiiic(>ll()i-s,"  "was  made  hy 
.\,l<i(.vd  r.  Siiiithson."  Less  than  a  montli  hefofe 
tiicdt-ath  of  tiiis  ureat  lawyor,  a  ffiend,  diiiinji  with 
hiiu,  asked  his  host  to  rchito  to  him  tho  incidents  con- 
ne.lcd  with  its   argument    and    decision.     "  I  will," 

lid  Lofd  Kldox.  '«  Come,  help  yom-self  to  a  jrlass  of 
Newcastle  poit,  and  give  mo  a  little.  You  must  know 
ihat  the  testator  in  that  cause  had  directed  his  real  es- 
late  to  l.e  sold,  and  lifter  paying  his  debts,  and  funeral 
and  testamentary  expenses,  the  residue  of  the  money 
to  he  divided  into  lifteeii  parts,  which  he  gave  to  tif- 
i,,ii  persons  whom  he  named  in  his  will.  One  of 
lliese  persons  died  in  the  testator's  lifetime.  A  l>ill 
was  tiled  by  the  next  of  kin,  claiming,  among  other 
t  hiiigs,  the  lapsed  share.  A  bri«f  was  given  me  to  con- 
sent ior  the  heir-at-law  upon  the  hearhig  of  tho  cause. 
I  liad  nothing  then  to  do  but  tc»  pore  over  this  brief. 
I  went  through  all  the  cases  in  the  books,  and  satisfied 
iiivsclf  that  the  lapsed  share  was  to  be  considered  real 
estate,  and  belonged  to  my  cliiMit,  the  heir-at-law. 

•*  The  cause  came  on  at  the  Rolls  before  Sir  Thomas 
M;\VKLL.  I  told  the  solicitor  who  sent  mo  tho  brief 
lUat  1  should  consent  for  tho  heir-at-law,  so  far  us  re- 
garded the  due  execution  of  the  will,  but  that  I  must 

upport  the  title  ot   the  heir  to  the  one-tifteciilh  which 


tm 


42 


r.<^lITY    (ASMS    SlMl'Ml'IKI). 


liMil  liipscd.  A<'c<)i-tliii<:ly,  I  (li«l  aririK'  it  and  \vt>in 
llirouirli  all  llif  authorities.  Wlicii  Sir  Thomas  Skwki  i, 
went  out  of  court  he  asked  tlic  Kciristt-r  who  tli.  ! 
vouiiir  man  was.  TIk!  Hcjrister  told  him  it  was  Mi 
ScoiT.  'Ho  has  ai'irucd  vcrv  well,'  said  SirTiiOMx- 
Si'.WKi.L,  'I)ut  I  eannot  airree  with  him.'  Tiiis  tli" 
Kcjrister  told  me.  He  decreed  asrainst  my  clieiu 
The  euuse  hiivinjr  heeii  carried  I»y  ai)i)eal  to  Lord  Chan- 
cellor Thuulow,  a  <j:uinea  brief  wa^  ajraiu  brought 
me  to  consent.  I  told  my  client  if  ho  meant  by  con- 
sent to  give  up  the  claim  of  the  heir  to  the  lapsed 
share,  he  must  take  his  brit-f  elsewhere,  for  I  wouM 
not  hold  it  without  arguing  that  i)oint.  He  said  somc- 
thiu"  about  voiiiiir  men  beini;  oI>stinate,  l)ut  that  1 
must  (h)  as  I  ihouirht  right.  You  see  the  lucky  thing 
was  there  l»oingtwo  other  parties,  and  the  disappointed 
one  not  being  content,  there  was  an  ai)poal  to  Lord 
Thiim.ow.  In  the  nioanwhilo,  they  had  written  to  Mr. 
Johnston,  Kocorder  of  York,  guardian  to  the  yo\mg 
heir-at-law,  an<l  a  clever  man,  but  his  answer  was: 
•  Do  not  .send  good  nioney  after  bad.  Let  Mr.  Scott 
have  a  guinea  to  give  consent,  and  if  he  will  argue  let 
him  <1()  so,  but  give  him  no  more.'  So  I  went  into 
corirl.  ami  when  Lord  Timklow  asked  who  was  to 
appear  for  the  heir-at-law,  1  rose  and  said  modestly 
that  I  was,  and  as  1  could  not  but  think  (with  much 
deference  to  the  Master  of  the  Kolls,  for  I  might  be 
wrong),  tliat  my  client  had  the  right  to  the  property, 
if  his  lordship  would  give  me  leave,  I  would  argue  it. 
It  was  rather  arduous  for  me  to  rise  against  all  the 
eminent  counsel.  I  do  not  say  that  their  opuiions  wore 
against  me.  but  they  were  employed  against  me. 
How<'ver,  1   .ii'L'ued   that  the  testatcn-  had  ordered  this 


EQl'ITY    CASKS    SIMlM.IFIKn. 


43 


it   mill    wcin 

OM AS  Si'.WKI  I, 

ttT  who  lli.il 
II  it  Wiis  Mi 
1  Sir  'rMr)M\-< 
1.'  Tliis  tlio 
t  my  (licnl 
()  Lord  Cliiiii- 
jXiiiii  broiiglit 
u'liiit  l>y  coil- 
to  tlio  lapsfil 
,  for  I  woiiM 
[Iv  Hiiid  sotno- 
(>,  Imt  that  I 
10  lucky  thiiiir 

disappointed 
peal  to  Lonl 
vritten  to  Mr. 
to  the  yoiiiiir 

answer  was  • 
[ict  Mr.  Scott 
will  arirne  lot 
V)  I  went  into 
;  who  was  to 
said  niodcstlv 
k  ( with  mncli 
r  I  luiu'ht  l)c 
the  property, 
)uld  arirno  it. 
irainst  all  the 
opinions  were 

Uirainst    nie. 
1  ord(M-od  thi.'' 


liiicciith  shiii-c  of  the  iiropcrty  to  he  coiivcrli'il  into  pcr- 
M.iial   property  t'nr  tiie   Ivenetit   of  one  parti<'iilar  iiidi- 
vhhial,  and  that,  therefore,  he  never  contemplated  its  ^ 
(M  uiiig  into  possession  of  eiliier  the  next  of  kin  or  the  r 
:.-.idiiarv  le<:atee,  but  heinir  land,  :it   the  death  of  the 
iiiilividiial  it  came  to  the  heir-al-law. 

'•  Well.  'riintLow  took  tiiree  days  t<.'  consider,  and 
thill  delivered  his  )ndi:inent  in  accordance  with  inv 
i-[H'ec|»,  and  that  speech  is  in  print  and  has  decided  all 
similar  (piestions  ever  since." 

Ilic  ciise  of  Ackroyd  v.  Sniitlison  is  soinctimes  confusfd  by  stu- 
,!( Ills  with  tliat  of  Flftclier  v.  Asliburner  as  simply  dccidini;  the 
liuiriiie  of  conversion.  But  Aclvroyd  r.  Sniitli.son  is,  of  coiir.se, 
(|iiiii'  l)eyoiid  the  doctrinr  of  conversion,  and  forms  an  iiistanco  of 
a  nsiilting  trust,  .showing  lliat  where  the  purposes  of  tlie  conver- 
Moii  fail  there  tlif  i)roperty  shall  remain  and  t;o  in  its  original  state; 
tin;-  if  a  testator  devises  to  trustws  to  .sell  and  divide  the  jiroeceds 
iHiueen  two  persons,  and  tliey  die  dnrin};  the  testator's  lifetime, 
tlii-  property  remains  in  its  orifjinal  state,  and  if  only  one  of  the 
parties  dies,  as  to  his  raolety  there  will  be  no  conversion,  but  It 
nill  L'o  accordinj;  to  Its  original  «iuality,  and  the  principle  of  this  is, 
that  where  an  estate  is  converted  merely  for  a  partiniUir  purpose, 
1111(1  that  fails,  the  court  will  not  infer  an  intention  to  convert  for 
any  other  pnri>ose. 

Ackroyil  r.  Sinilhson  is  only  on  the  point  of  a  resnllinf^  trust  in 
11. ,•  case  of  real  estate  directed  to  be  sold,  and  it  was  at  first 
UiKibled  whether  the  rule  there  established  applied  to  the  case  of 
money  directed  to  be  laid  out  in  the  purchase  of  land  to  be  settled 
uiioii  trusts  which  either  wholly  or  partially  failed  ,  but  it  has  now 
:  Hit;  been  decided  that  it  does  so  apply,  ludennaur  Ld.  Cas. 
1    ;.  !l;i. 


iilHfe 


44 


EQllTV    (  A?>K.S    t^lMl'I.ll'IKU. 


ELECTION. 


WILIJAXKS    V.    WII.IJAXKS. 

[in  111.  17. ] 

'I'lic  liist  will!  (if  U.  A.  I).  \Vill)!iiiks,  of  Illinois, 
owiicil  tort y  acri's  of  luinl  ulu'ii  Aw.  divil.  leaving  chil- 
dren. Will)aiiks  married  asrain,  and  likcwiso  went  over 
to  tilt  majority,  leaving  a  t^on  by  his  second  wife,  uml 
<U>visin<;'  to  liis  seciml  wifti  ami  his  son  these  forty  acres  ; 
and  to  tho  «'hildren  hy  the  liist  witc  ho  left,  hy  tlif 
sami!  will,  certain  le<racie.s.  Of  cotirse,  Wilhanks  hail 
no  power  to  niak«  tht;  devise  as  to  the  forty  acres,  for 
il  Itclonired  to  his  first  wife'.s  children.  So  thi'V 
l)roULdit  an  action  aiiain^t  wife  No.  2  and  son  to  recover 
the  i)roperty.  lUit  the  eonrt  decided  that  th\v  mu>i 
cither  relin(inish  their  claim  to  the  lo<j;acic,s  or  to  tin' 
forty  acres, — they  could  not  have  both;  they  nuisi 
elect  which  one  benclit  they  would   take. 

"  In  the  jxeneral  lanLru:ig«  of  the  authorities,"  said 
S(  ATKs,  C.  J.,  "  they  may  not  at  tho  same  time  take 
under  the  will  and  contrarv  to  it." 


BROOIK   V.  IJAIIUY. 

[•_' Vus.  &  B.  r-'7.] 

John  Brodie  boqueatheil  to  his  niece,  Betty,  apart  of 
his  estate  situated  in  Kiii;land  and  Soothmd.     To  hi> 


r.f.ti  nv  (  AM  s  siMri.iiir.i). 


1.') 


,  of  Illinois, 
leaving  chil- 
isc  went  over 
)iitl  wife,  ami 
■  forty  a('n'> ; 
!  loft,  l>y  til.' 
Vilhanks  li;i<l 
rty  acres,  for 
1.  So  tlifv 
on  to  ri'covci' 
at  tli\y  niu>i 
i«\s  or  to  tln> 
:  tlioy    imisi 

Drities,"  said 
no  time  take 


3tty,  a  part  of 
iiui.     To  hi> 


j„l.lif\vs  aiitl  oliiiT  ni.-.tv-.  Ill'  ••iIm.  left  >li:uvs  of  liis 
|,in|icrtv  ill  Ixitli  coiiiitrn'.-.  lull  tiii-will  was  mi  Kadly 
,ii;,vMi  tiial  Oil  hi-  licatli  it  wa^  loiiii.i  tiial  tli"  prnprrly 
ill  ScoliaiHl  <iiii  not  pa-s  iiikUt  it,  lull  went  to  r>.'tly. 
ui„.  was  !iis  JK'ir  at  law,  ai'fordiiiu'  to  tin-  i.".w  of  S'ol- 
laiMJ.  Tlic  otli.T  Ic-rattM's  very  naturally  oI.jccI.mI  to 
l„r  taUin.i;-  tin'  wlioi.-  of  the  Scolrh  propi'ity,  and  ai>o 
lu-r  >liarf  of  tin'  Knudi-li  proiiiTly  iind.T  llif  will,  and 
tho  .|iic>tion  aroM'  wlictli.T  she  should  Ix'  allowed  ooth 
t,,t;iU<'  :1h"  ix'iiflils  uiv.n  to  licr  l)y  tin'  will  and  the 
(iiniuTty.  which  li.-in::- thus  informally  (h'all  with,  de- 
xeiidfd  'o  her  a-,  heir  at  law,  or  whether  she  should 
lie  put   to  her  eleetion. 

riie  eoiu-t  of  .•liaiieery  held  that  the  Seoteh  heiress 
coiiid  no/  take  t>oth  the  heiietlts  uiveii  her  by  the  will 
ami  the  jtroijorty  which,  heini;-  informally  dealt  with, 
u.aild  do-soend  to  her  ;   hut  ^.hat  she  must  eUul  hetweeii 

them. 

roopKit  V.  <*<><>rEK. 

fl,.   I{.  7     II.  1-.  CilS.  .V!.] 

Tho  proceeds  of  an  estate  heing  i^ivon  in  trust  as  one 
\hs.  Cooper  should  appoint,  she  appointed  the  same 
lo  her  three  sons,  her  executors,  etc.,  ecpially,  suhjeot 
to  a  power  of  revocation  l»y  decMl.  She  never  oxer- 
.  -ed  this  i)ower  of  revocation  :  hut  l.y  her  will  and 
ulirils.  treatin<r  liers(«lf  still  as  liaviiiiT  :'  disposing 
|iiwer  over  the  .said  property,  s!io  gave  it  absolutely 
\>>  the  eldest  of  the  throe  .sons,  and  gave  other  honetitrf 
1  .  the  children  of  tho  second  son  (  he  having  in  the  nieaii- 
laie  died,  leaving  children  ),  and  also  to  the  third  son 
1  iii-  suit  was  brought  to  compel  the  third  son  and  tho 


m 


4(5 


i:<^iriv  CAsis  siMpi.iiir.i), 


cliiltlrcii  (iI'Mlii!  sc<'i)ii(l  soil  to  clfct  Itctwi'cii  tiiUiiii;  tin- 
ili'i-  the  sfttlcim-iit  or  iiiidcr  tlic  will  ;iinl  codiciU. 
TliiTc  WMs  iKi  I'diitciitiou  as  to  tlic  tlii)-,)  ..,,1,,  \vlio  a.l- 
luiltt'd  tliat  lie  iuu<i  elect  ;  l.iit  the  eliildreii  oftiie  dr. 
censed  son  olijecled  to  elect,  on  tlie  ifroimd  that  (he\, 
taking'  their  parents"  interest  under  the  Staliile  of  Di- 
trihiitioiis  as  next  of  kin,  their  riirhts  were  of  an  und.'- 
fiiKMJ  and  infaiiLMlth'  interest,  and  not  the  siihjei-t  of 
flection. 

Hilt  (he  court  tlioui;iit  otherwise,  holding  (hat  (he 
S(atu(e  of  Distrilxilions  is  nothinir  l>ut  a  will  made  hv 
tl»e  LoLMsJature  for  au  intestate,  and  that  (suhjeet  in 
tho  eh\iuis  of  creditors)  the  litl(>  of  the  next  of  kin  i- 
substantial  and  coniplete,  and  that  tiie  ri;:hts  of  those 
rhildreu  of  the  second  son  was  exaetly  (he  same  as 
were  the  rights  of  (he  (hird  son,  and  (hat  tiiov  must 
eh'ct. 

Tlie  (lociriiic  of  fleet  ion  originates  in  inconsistent  or  alternntive 
cionaiions,  mul  ii  consists  in  tlie  clioosini;  by  a  person  between  two 
rights,  where  there  is  an  intention  expressed  or  implied  that  thev 
shall  not  both  be  enjoyed.  !t  rests  upon  the  etiuitabie  ground.^ 
that  no  man  should  be  allowed  to  claim  inconsistent  rights,  and  that 
any  one  who  sets  up  an  interest  under  an  instrument  is  bound  to 
give  full  effect  to  the  document;  he  cannot  enjoy  one  part  of  the 
provisions  which  is  to  his  liking,  and  reject  another  part  which 
is  not  til  his  liking. 

Election  may  be  express  or  implied.  ".\n  express  election,"  say.s 
Mr.  Uisni AM,  "  is  where  a  condition  is  annexe<i  to  a  gift,  a  compli- 
ance with  which  is  distinctly  made  one  of  the  terms  upon  which  the 
gift  alone  can  l)e  enjoyed.  Thus  if  a  testator  were  to  say,  in  so 
nniny  words,  that  a  legacy  given  by  his  will  should  only  go  to  the 
legatee,  upon  the  stipulation  that  the  latter  should  convey  a  piece 
of  land,  which  was  his  own,  to  a  third  party,  here  would  t)e  an  ex- 
prcs.s  condition,  and  the  legatee  would  have  to  choose  or  elect  be- 
tween the  legacy  and  the  land."  IJisph.  ICii.  2',m;.  On  the  other 
baud,  suppose  A.,  by  will  or  deed,  gives  to  IJ.  property  l)clonging 
to  C,  and  l)y  the  same  instrument,  gives  other  property  belonging 


ikM 


r,(^iriv  (ASKS  siMi'i.iru.i). 


II  tiikiiiuf  tiii- 
iiid  codicil-, 
-on.  wlio  ;i  i- 
I'li  of  (1m>  di  . 
d  that  tlic\, 
iitut<'  of  Di- 
!  of  nil  uiidi'- 
0    siil)jcct    tit 

iiijf  (Iiat  llic 
kill  iiiado  liv 
(  >ii!)jcct  til 
'xt  of  l<iii  i- 
lits  of  tlitv-e 
the  same  ai 
t  tiiov  mii>t 


t,i  liiinsclf  til  (".     A  r.iiirl  m'  ciiuiiy  will  Imlil  ('.  In  I iititlcil  to  tin- 

..'if'  tiiaili'  to  liiiu  l)y  A.,  only  upon  tlic  imiilU''.!  coiulitioii  of  jiis  coti- 
formiii^  to  all  tlio  |iiiivlsioii>i  of  tliii  iiistriiiiii'iil,  l)y  nMiouncin;;  the 
riuht  of  Ills  own  property  In  f;i\'or  of  IJ.  (".  niU!*t  conscuncntly 
iiKiki'  tils  ciiolci',  iind  tliis  is  a  crtse  of  an  iniplU'il  I'lcction. 

Wliore  a  person  I'lceis  aiiain>l  Ilic  instrument,  i.e.,  refuses  to 
j:iu'  n|)  liis  own  properly,  lie  does  not  silwiiys  absolutely  forfoit 
the  beiiellls  <ji\('n  liiin  by  il,  bill  only  so  niueli  of  it  as  will  eoinpen- 
sile  the  olhur  party.  Tliiis,  if  A.  jiives  U.  81, mill  ami  C.  a  small 
iiinise  of  small  value,  to  wliieli  H.  is  ealilled,  ami  H.  refu.sts  to  rori- 
turiii  to  the  testator's  will,  lie  is  only  bound  to  (j;ive  up  so  much  of 
tin  «l,0O0as  tlio  house  is  wortli,  so  as  to  compensate  C. 

Cooper  f.  Cooper  is  a  recent  case  of  jjreat  importance,  deciding 
a'*  it  does,  that  persons  takinji  interests  under  a  statute  of  distribu- 
iinii,  are  subject  to  tlio  doctrine  of  election  in  tlie  hame  way  as 
those  througli  whom  tliey  claim  would  have  been. 


I  or  alternative 
m  Ijetween  twn 
plied  tliat  thev 
itat)le  ground,'* 
rif^hts,  and  that 
nt  is  bound  tn 
me  part  of  the 
her  part  which 


election,"  says 
}jift,  a  compli- 
ipon  whicli  the 
•e  to  say,  in  so 
only  go  to  tlie 
convey  a  piecs 
)idd  i)e  an  ex- 
se  or  elect  be- 
On  the  other 
erty  bclongiuR 
erty  belonginK 


•l.s 


Ki^riiv  (  .vm;s  .simi'Lhikd. 


I'hununfASci'j  ^'EQriTY  iMPrrKs  ax   is 

TKSrmX  Tit  ITLFIL  AX  oltl.Ki ATIOX." 


\VII.<<K'KS    \.  WII-COrKS. 

[1*  Vein.  ;■),".■' ;   J  Wli.  .<.  'I'ikI.   1.<I.  t'lis.  I'.ii.  I!."-'.!.) 

Tli(*  ])liiiiitill"s  ratliiM',  updii  Ills  marriafrc  covr- 
niuitftl  to  iiiirclias(*  laiid-  nt'  the  value  nl"  t'-'HO  lur 
amiiiiii.  ami  m'MIc  tlu'  same  iipnii  liiiiiscir  loi-  lil'c,  ami 
to  lii^  tirst  ami  otlicr  sons  at'tcr  liis  dcatli.  lit-  pm- 
ohastnl  lai>tl>'  ot'llial  valiu',  bill  made  no  sctlifincnl  "i 
llu'in,  anil  tln-v  (IcsccndtMl  to  tlic  plaintill'  as  heir  ;ii 
law.  The  plaintitl"  was  not  sali-tied  with  this,  l>iii 
asked  for  a  specitie  perl'oiinanee  ol'tlie  covi'naiit  ont  nl 
his  lather's  peixmal  estate,  lie  was  not  sncce>-l'iil, 
for  the  court  decided  that  the  lands  which  descenilcd 
to  him  n!n>t  he  taken  as  a  pei't'orniance  ot'  t  he  eovenani . 


lU.ANDV    V.  WIOMOKi:. 

[1  1'.  Wm-..  :iL':'.;  l'  \Vh.  vt  Tii.l.  I-il.  Cii-^.  i:i|.  :i''l-] 

A  husband,  [)revioiis  to  his  marriage,  promised  I>y 
deed  to  leave  his  intended  wife  £(520,  if  she  should 
survive  him.     The  marriajre  took  place  and  the  hu— 


i;<jinv  (  \si:s  mmimii  up. 


Ill 


rf:.s   AX    /.v 

..1/70.V/- 


iii'i'iii<.f(',  covi'- 
>  ot"  i'l'tX)  \n-y 
If  t'di'  life,  iiiiil 
iitli.  Ilf  |)iii- 
^(•tllfiuciil  I't 
it  ill'  as  licit'  111 
with  llii>-.  l>iii 
•ovfiiaiit  out  (il 

lli)t    sll('('('s-;l'lll, 
licll     (It'SCClllll'll 

I'  tlic  covciiaiil. 


!mi.:1'..1.] 

',  promisetl  !)>' 
I,  if  -^lu'  slioiilil 
e  ami  the  iiii-- 


li.illd   dicil    intestate,  luil     tiie    wile's   share,    tllliler    (lit) 
Statute  ol"  l)istrii»iiti(tiis,  tar  exceeded  t'di'd. 

i'lieCliaiicellnr  licM  tliat  tlii>  wile  was  im/  entitled  to 
have  tlio  I'tiiiO  ro/f/ licf  distrii)Utive  sliai'e,  lini  ijic  dis- 
tiiliiitivo  sharo  must  l»e  taken  as  a  salisliiclloii  or  por- 
r.iimuiico  of  the  covenant.  "I  will  take  this  (cove- 
nant," srJd  tlieChaneellur,  '«  not  to  he  broken,  lor  the 
ai:iet'iuent  id  to  Icavf  the  widow  £i'>-20.  Now,  (ho  in- 
ti'-tate  in  this  ca«e  has  left  Ins  widow  £(!2()  and  np- 
waitls,  which  she,  as  administratrix,  may  tako presently 
ii|i.iii  her  hushand's  death  ;  wherefore  let  her  take  il  ; 
liiit  then,  it  shall  be  accounted  as  in  .satisljietion  ol'and 
to  include  in  il  her  demand  by  virtue  of  the  covenant, 
M)  (hat  she  shall  not  come  in  lirst  as  a  creditor  for  the 
t'lc'i),  and  then  for  a  moiety  of  the  surplus," 


OLIVKK   V.  IJKICKLA\I>. 

[I   Vl'.s.  sr.  1  ;  .!  Atk.  I  JO.] 

A  husl)and  oovonante(l  (o  pay  his  wife  a  certain  sum 
icif/iiii  two  f/rars  after  his  murriago,  and  if  he  died  his 
executors  should  pay  i(.  lie  lived  after  the  two  years, 
l)ut  died  intestate  and  without  paying'  the  sum  prom- 
ised to  his  wife.  But  his  wile's  distributive  shan;  was 
larjjfcr  than  the  sum  covenanted  for.  Nevertheless,  i( 
"IS  held  that  the  widow  was  entitled  both  to  the 
money  inider  the  covenant  and  to  her  distributive 
-liare  of  the  residue.     There*  was  a  l)reacli  of  the  covc- 

4 


;»o 


l,<^l  IIV    (    \»l>    MMl'lll  lll». 


mint  iH-fon)  th.-.l.-Mlli   <'flli<'  Imslmn.l.  an.l    110111    tli- 
iiM.iii.Mit  oflhcl.ivii.li  ;i  (U'l.t  acTiicil  to  tlio  wil't". 

TlUMl.KMrlncdf  i.«-f.,nimn.-.,'  i,  foumloil  on  ilic  iiiiixiin  of  ,M|uit , 
|M|Ulty  iiiiputcs  an  inlmllon  to  fullU  an  ol.li«ulion,  /..  .,  when  a  i" 
son  covrnants  to  ,lo  an  a.t.  an.l  I..'  .lo.'s  some  ollu-ract  timt  ■• 
oapahlf  of  iMinK  api-li.-.l  towards  a  iHTformann-  of  tliU  rovriiaii', 
he  will  l)c  i.iv>nnna  to  liav.-  lia.l  th.'  inl.'ntU.n  of  i..Tfonnin-  1.  . 
.-ovimnt  wbni  IH.  ,11,1  tho  otl.rr  a.'t.  SnHl.  Km.  •-M-'.  The  niResari- 
in;.'   mipI.t  llii"  rule  ar.'  illvUlhlc  Into  two  i-Irs^us. 

I  nin  /■<■  '/.'/■'■  i"  "  •■'"■'■nnni  lo  iiitrrfKis,'  ami  »ltlr  hi)i<l.s,  niul  i 
j,H,rh<i^f  of  iiml^  »N  ,„..,/.■,  hut  is  not  erprp>^s,d  t'>  i'<:  i»  pumi„nc.  i 
,„rl,  rorrmvit,  „n.l  ».-.  s.llhmntt  nflhrm  h  m-..^.  -  Wllcocks  r.  Wil- 
rocks  (l,;cl.U's  what  will  l.c  tli-  .•ff.'ct  of  this-  tho  i.nnhase  of  \\u: 
1  mds  •m.l  thi'ir  (Irsciiil  hv  law  to  thf  covonuiitc.'  will  be  (h'l'm.Ml  ;i 
m.rfornianc.'  of  tlio  rov..nunt.  In  Wil.-o.ks  v.  WlU'ocks  It  will  h,' 
s,..-n  that  llu-  lands  thcr..  pnichas.'d  wen-  of  cMnttl  vain.'  with  thos. 
covonnnU'd  to  be  sc-ttk-d;  bnl  it  bus  also  bcrn  d.-hlL-d  that  evou 
wb.To  tin-  lands  purchased  are  of  less  salue,  they  shall  be  consider,  I 
as  a  part  perf,.rniance  of  the  covenant.  Lecbnicre  v.  Earl  of  Car- 
lisle  ;-.  1'  Wni-.Jll.  It  should  alsobc  noted  here  that  fl)  where  t!i,' 
covenant  points  to  a  futurr  ;.,<;•.■;,„>■,.  it  will  not  be  presumed  tha' 
Pmds  of  which  the  covenantor  was  then  >ei/.ed,  were  intended  to  h, 
taken  in  performance  of  It,  and  (■-')  pro|.erty  of  a  different  natinv 
from  that  cov.nante.l  to  be  purchased,  will  not  be  presumed  to  be  in- 
tended as  a  perfuniiance. 

"  W'herr  iltrr,-  /.■<  '(  ci-rwint  to  l<''iv>-  pfrsomil  property,  and  thr 
ror"-mn,f,'C  m'or.T.s ,( >^hnre  under  an  intestacy.  -  Two  rules  have  been 
established  as  to  this,  viz. :  — 

(a.)  Where  the  covenantor's  death  occurs  at  or  before  the  tim.> 
when  the  obligation  accrues,  the  distributive  share  is  a  performanc. 
of  the  covenant.     Blandy  v.  Widmor.'  lllu.strates  this. 

(h  )  Where  the  death  occurs  after  the  oblijjatlon  accrues,  the  dis- 
tributive share  is  not  a  performance.    On  this  point  see   Oliver   •. 

Urickland.  ,  u       1 

It  should  be  mentione,!  that  it  has  been  decided  that,  althousli  :i 
distributive  share  on  an  intestacy  will  be  taken  as  performance  of  i 
covenant,  yet  a  ;.'ift  bv  will  of  a  sura  of  money  as  a  residue  will  imt 
cooperate  per  se,  because  It  imports  bounty.     And  where  the  cov,  - 


■.!>. 

il,  mill    iVitin    tlui 
1(1  tlio  wito. 

llic  iiiiixlin  of  i'c|Uit\ 
iipii,  /..  .,  when  11  1"   - 
inc  oilier  act  tliiit  :■> 

lU'i'   of   tllU  covt'lllllit, 

m  of  pfi-forininL:  li  i 
,'.':(:;.     The  ciiseHftri^- 

I,,;  .•<rlth'  hiiiil.i,  and  'I 
((I  /•«'  ill  purnwinri  / 
^.  —  Wllcocks  r.  Wil- 
-  the  inirihii:*e  of  Ihi! 
lU'c  will  he  (Ici'llK'd  ,1 
•.  WUcocks  It  will  ti'' 
(|iitil  value  with  thosi' 
ell  (liTl(le<l  thilt  even 
ley  shall  be  coiisldep  I 
iiiiere  r.  Karl  of  Car- 
lere  that  fl,)  where  t!ic 
not  he  presumed  tli  i' 
d,  were  iiiteudetl  to  Iji 
of  a  different  iiatuiv 
I  be  presumed  to  he  in- 

mil!  property,  and  tlir 
-Two  rules  have  hetii 


i;<.irn>    casks  simimi  ii.i».  ;)i 

Il  lilt  In  not  to  pay  a  fjross  sum,  hut  the  interest  of  a  sum  of  money 
i.r  life  or  u  mere  life  auuuity,  the  principle  upon  which  IJiand> 
■  Widmorc  was  decided  dues  not  apply,  ludcrmaur  LU.  Cas. 
l.i  IUj. 


s  at  or  bfforc  the  timi' 
share  is  a  performaiai' 
ites  this. 

jation  accrues,  the  di>- 
s  point  sec   Oliver   • 

Bcided  that,  although  ;i 
en  us  performance  of  :i 
L-y  as  a  residue  will  nut 
.     And  where  the  covi  - 


5-2 


EQUITY   CASES   SIMPLIFIED. 


SATIS  FACTTON. 


X.VI.BOT  V.  DUKE  OF  SHREWSBURY. 

[Prec,  Cb.  392;  2  Wh.  &  Tuil.  Ld.  Gas.  Eq.  370.] 

In  this  case  it  w.as  decided  that  if  a  debtor,  witlioiil 
tuiring  notice  of  the  debt,  bequeaths  a  sum  as  great  as 
or  greater  than  the  debt  to  his  creditor,  this  is  a  satis- 
faction ;  but  it  is  not  a  satisfaction  if  it  ."3  bequeathed 
on  a  contingency,  or  if  the  bequest  is  lesp  than  the 
debt. 


CHANCEY'S  CASE. 

[1  P,  Wms.  408;  2  Wh.  &  Tud.  Ld.  Cas,  Eq.  380.] 

An  old  gentleman  who  owed  his  maid-servant  a  mat- 
ter of  £100  for  wages  gave  her  a  bond  for  that  amount. 
The  old  gentleman  died  without  paying  the  bond,  but 
by  his  will  he  gave  the  maid-servant  a  legacy  of  £500 
"  for  her  long  and  faithful  service,"  so  his  will  read. 
The  will  also  directed  th-it  all  his  debts  and  legacies 
should'be  paid. 

The  maid-servant  claimed  both  the  amount  of  the 
bond  and  the  legacy,  and  the  Chancellor  decided  that 
she  should  have  both,  on  the  ground  that  the 
legacy  was  not  a  satisfaction  of  the  debt  due  on  the 
bond.     Tne  court  said  that  the  testator,  by  the  express 


KI.XITY  CASKS  snii'i.iriKi). 


53 


wdvds  of  his  will,  hail  ordored  that  all  his  debts  and 
l.oiicics  should  he  paid,  and  the  £100  being  a  debt  and 
the  £')00  being  a  legacy,  it  was  as  strong  as  if  he  had 
diiectcd  that  both  the  bond  and  legacy  should  be  paid. 


RY. 

•] 

,  withoul 
i  great  as 
is  a  satis- 
jquoatUeil 
than  the 


BO.] 

int  a  mat- 
,t  amount, 
bond,  but 
'J  of  £5(K) 
will  read. 
d  legacies 

Jilt  of  the 
(cided  that 
that  the 
lue  on  the 
the  express 


STRANG  V.  WIT.LIAMS. 

[12  Mass.  ;V.U.] 

Mary  Strong  was  Mr.  Little's  housekeeper,  who 
L'avc  her  a  bond  for  $333  and  a  written  promise  to  pay 
her  $20  a  year.  In  hia  will  he  bequeathed  her  a  gen- 
eral legacy  of  $300,  and  a  specific  legacy  of  certain 
iroo.  s  and  chattels  of  the  value  of  $745.  After  Mr. 
r.ittle's  death,  Mary  brought  a  suit  on  the  bond,  and 
his  executors  argued  that  the  legacies  were  a  satisfac- 
tion of  the  debt. 

But  the  court  did  not  agree  with  them.  The  judges 
lield  that  the  general  legacy  was  not  a  satisfaction  of 
the  debt,  i)ecause  it  was  less  than  the  amount  of  the 
debt,  and  that  the  specific  legacy  was  not  a  satisfactio'i 
l)ecause  it  was  of  a  difcrent  nature.  So  Mary  received 
lier  legacies  and  was  paid  the  liond  into  the  ])argaiu. 


[Bro.C.  C.300n; 


HOOLEY  V.  HATTOX. 

Wh.  &  Tml.  Lil.  Cas.  £([.  34t!.] 


Lad"   Finch,  by   her   will,  gave   her   maid,  Lydia 
ooley,  a  legacy  of  £500,  and  afterwards,  by  a  codi- 


.^4 


EQUITY   CASES   SIMPLIFIED. 


cil,  !i  legacy  of  £1,00(1,  uiul  the  question  was  whethor 
the  last  legacy  alone  passed  or  the  legatee  shouM  have 
both.  The  court  held  that  Lydia  was  entitled  to  both 
legacies ;  but  that  if  a  legacy  of  the  same  amount  i- 
given  twice  for  the  same  cause,  and  in  the  same  instni 
ment,  and  in  the  same,  or  nearly  the  same,  words, 
then  it  will  not  be  double  ;  but  where  in  different  writ- 
ings there  is  a  bequest  of  equal,  greater,  or  less  sums, 
the  legatee  will  be  entitled  to  all  of  them. 


tit 


EX  PARTE  PYE. 

[18  Ves.  140;  2  \Vh.  &  Tud.  Ld.  Cas.  Eq.  .365.] 

This  case  is  the  leading  authority  for  these  rules  :  — 

1.  That  where  a  parent  gives  a  legacy  to  a  child, 
not  stating  the  purpose  with  reference  to  which  he 
gives  it,  he  is  understood  to  give  a  portion;  and  m 
consequence  of  the  leaning  against  double  portions,  it 
tlie  parent  afterwards  advances  a  portion  on  the  mar- 
riage of  the  child,  the  presumption  arises  that  it  was 
intended  to  be  a  satistaction  of  the  legacy  either  wholly 
or  in  part :  and  this  applies  where  a  person  puts  him- 
self in  loco  parentis} 

2.  But  no  such  i)resumption  arises  in  the  case  of  a 
straniror  or  of  a  natural  child,  where  the  donor  has  not 
put  himself  in  loco  parentis,  unless  the  subsequent 
advance  is  proved  to  be  for  the  very  pun>ose  of  satisfy- 


'  In  the  plait   of  the  parent 


I 


KQl  ITY   CASKS   SIMI'LIFIKU. 


;)i) 


was  whethiT 
3  shouM  hiivc 
titled  to  botli 
ue  amount  i> 
;  same  iiistrn 
same,  words, 
iiffeyentwrW- 
or  less  sums, 
1. 


1.  365.] 

;hese  rules :  — 
icy  to  a  cbild, 
)  to  which  he 
)rtion ;  and  in 
)le  portions,  if 
)u  on  the  mar- 
es that  it  w:i!< 
'f  either  wholly 
rson  puts  him- 

the  case  of  ii 
J  donor  has  nof 
he  subsequent 
oose  of  satisfy- 


injltho  le-iacy  ;   and,  therefore,  the  legatee  will  bo  en- 
titled to  both. 

Satisfaction  is  defined  »s  tlie  pivinfj  by  a  person  liable  to  some 
claim  of  the  donee,  of  something  different  from  tlie  subject  of  sucli 
claim,  but  intended  in  substitution  thereof.  I'erformance  {ante, 
n  (s)  appears  at  first  sight  tube  the  same  as  satisfaction,  but  a  closer 
i.xamination  of  the  two  doctrines  will  show  that  the  distinction  is 
obvious  enough.  That  distinction  has  beer,  stated  to  be  that  "  satis- 
fiiction  implies  tlie  substitution  or  gift  of  something  different  from 
the  thing  agreed  to  be  given,  but  e<iiiivalent  to  it  in  tlie  eye  of  the 
liw  while  in  cases  of  performance  t,ie  thing  agreed  to  be  done  is 
in  truth  wholly  or  in  part  perfm  ..■d."  The  cases  on  the  doctrine 
of  satisfaction  may  be  divide,    .mo  fotr  classes. — 

I.  Satisfaction  of  del. is  by  legacies. 
II.  Satisfaction  of  legacies  by  8ubse(iuent  legacies. 

III.  Satisfaction  of  legiicies  by  portions. 

IV.  Satisfaction  of  portions  by  leg;i'  i(-^. 

I  Satisfaction  of  dehts  hy  legacies.  -  The  general  rule  Is  as  stated 
in  Talbot  y.  Duke  of  Shrewsbury,  that  if  a  man,  by  his  will,  leaves 
a  creditor  a  sum  of  money  as  great  or  greater  than  his  debt,  with- 
out saying  anything  about  the  d<bt.  the  legacy  will  be  a  satisfaction 
of  the  debt,  and  the  creditor  cnvnol  t.vi  e  the  legacy  and  then  under- 
take to  collect  the  debt.  The  ii'^ni  ..  in  such  cases  is  debitor  non 
pmsumitnr  donare,  that  is  to  say  a  debtor  is  not  presumed  to  be 
making  gifts,  he  is  rather  paying  his  debts  when  he  leaves  a  legacy 
to  a  creditor.  But  this  presumption  is  not  very  strongly  favored 
by  the  courts,  and  therefore  it  is  not  suxi)risingto  find  several  excep- 
tions—six  In  all —where  the  bequest  is  held  not  a  satisfaction  of 
the  debt.    Th'-seare:- 

(„  )  Where  the  legacy  Is  less  than  the  debt.  Here  it  will  not  go 
in  satisfaction  even  pro  tanto.    Strong  v.  Williams  illu.strates  this. 

[b  )  Where  the  debt  was  contracted  subsequently  to  the  making 
of  the  will  Here  it  is  obvious  the  testator  could  have  had  no  m- 
tculion  of  making  any  satisfaction  of  what  was  not  at  the  time  n. 
existence. 

(<•  )  Where  the  will  expressly  directs  that  the  debts  and  legacies 
8hall  be  paid.    This  was  the  doctrine  of  Chancey's  case. 

(d  )  Where  the  time  fixed  for  the  payment  of  the  le-acy  Is  differ- 
.  ,1  from  the  tin.c  when  payment  of  the  debt  is  d.jmaudab'.e.     In  a 


5(; 


KfMTIV    CASKS    SHI  I'M  II  KD. 


well-known  case  ((Miiik  v.  Sewt-U,  :'.  All;.  W),  there  v.-!is  a  leii.u  v 
Siven  to  a  iTedilor  far  excoeilinf;  the  amount  of  the  deb*,  but,  !iy 
Uio  will,  all  the  le^Mcies  were  directed  to  be  paid  one  month  afnr 
the  testator's  decease,  and  it  was  held  that  the  fact  .f  the  le^'a(  ■  •■. 
not  bcinjj  payable  liil  after  a  month,  prevented  the  satisfacti m 
which  would  otherwise  lia\e  laki^n  i  lace. 

(c.)  Where  the  leijaey  is  continueiit  or  uncertain. 

(/'.)  Where  the  leuacy  is  not  of  the  same  nature  as  the  debt, 
Thespccillc  legacy  in  Slrony:  r,  Williams  illustrates  this  except;  .11. 

II.  SatinfMtiim  itflv[i<icieti  bij  aiiburrjurvt  tc'incias.  —  Two  classes  of 
eases  occur  under  this  head,  («)  where  the  legacies  are  by  the  sain. 
instrument,  ('*)  where  the  legacies  are  by  ditTerent  instrnmeuts. 

(((.)  Where  legacies  of  ((uantity  are  given  by  the  same  instni- 
incnt  simplifitir  (i.f.  without  any  expression  of  the  motive  of  tin 
gift),  and  arc  of  e(iual  amount,  one  only  will  be  good.  The  leading' 
American  case  on  this  point  is  Dewitt  i\  Yates,  10  Johns.  KiH. 
Here  a  father  beciueatlied  ijiLTiO  to  the  cirldrcn  of  his  daughtrr, 
Maria,  payable  in  sums  of  $oO  to  each  on  coning  of  age,  or  marrv- 
Ing.  Uy  a  subsequent  clause  of  the  same  will,  he  devised  one-hull 
of  one  of  his  farms  to  his  son-in-law,  directing  him  to  pay  the  cliii- 
dren  of  his  daughter,  Maria,  $-2M,  on  each  coming  of  age  or  mar- 
rying. Chancellor  Ki;.Nr  decided  t'- it  the  second  legacy  was 
more  repetition  of  the  llrst,  and  that  the  children  were  not  entitUu 
to  both.  On  the  other  li  iiul,  where  the  legacies  are  of  unequal 
amount,  they  are  consideied  cumulative. 

(h.)  Where  legacies  are  given  by  different  instruments  to  tlir 
same  person  simplkitei;  the  court  considering  that  he  who  has  given 
more  than  once  moans  more  than  one  gift,  permits  the  legatee  tn 
take  both.     Hut  to  this  rule  there  are  two  exceptions:  — 

(1.)  If  the  same  motive  is  expressed  and  the  same  sum  given 
in  both  instruments,  the  legatee  can  only  take  one. 

(2.)  If  the  legacy  is  aspecillc  thing  the  legatee  can  only  take 
one,  though  it  is  given  twice.  Thus  if  A.  by  one  will  gives  15. 
a  certain  ruby  ring,  and  by  a  subsequent  will  also  gives  him  the 
ruby  ring,  here,  of  course,  there  can  bono  repetition  of  the  gift. 

It  is  important  to  imiuire  whether  extrinsic  evidence  can  be 
given  to  show  whether  a  testutor  intended  a  legacy  to  be  by  way  of 
augmentation  or  as  a  repetition,  as  if  so  the  rules  laid  down  in  the 


I 


KQllTY    CASKS    Sl.MPl.lllKI). 


57 


rrc  v.'us  a  l('L';n  \ 

tlie  del)',  but,  !jy 

one  month  afur 

rt  >f  llii;  U'sa( :  •> 

I  the   satisfacti  III 


ture  as  the  (k'lit, 
I's  this  except;  iii. 

,  —  Two  classes  of 
,'s  are  by  the  saiin 
It  iiistruincnts. 

the  same  iiistni- 
thu  motive  of  tin 
)oil.  The  loacliiii; 
:,  10  Joliiis.  15i;. 
of  his  ilau^htiT, 
of  a<ie,  or  niarrv- 
;  devised  oue-lmlf 
in  to  pay  the  cliii- 
insj  of  a^e  or  iiiar- 
)iid  lejiacy  was 
were  uot  entitlcu 
s   are   of  unc(|ii:il 

iistniments  to  tlu' 
tlie  who  has  given 
lits  tlie  legatee  to 
ions :  — 

le  same  sum  given 
:e  one. 

atee  can  only  take 
^  one  will  give:*  1!. 
also  gives  him  tliu 
letitlouof  the  gift. 

evidence  can  bi' 
cy  to  be  by  way  of 
s  laid  down  in  the 


,l„,vo  cases  ini-lit  often  be  alteriMl.  It  is  eMalili-^lied  on  this 
',,„nt  that  where  the  court  raises  the  presumption  against  double 
Uacies,  it  will  receive  parol  evidence  to  show  that  the  testator 
,,'uallv  intended  the  double  gift  he  has  expressed,  for  that  but  re- 
i,„i>  the  presuinpthmof  the  court,  and  supports  the  apparent  inten- 
liuii  of  the  will;  but  where  the  court  raises  no  presumption,  as 
wlieie  legacies  are  given  by  different  instruments,  it  will  not  admit 
parol  evidence  to  show  testator  only  meant  the  legatee  to  take  one, 
for  that  would  be  to  contradict  the   will.     Indennaur  Ld.   Cas. 

Eq.    ll)0 

III. -IV.  Satisfaction  or  move  propcHij  axkmiition   of  l('i;udi'H   '"i 
p.,rtious,  ami  xntisfaclion  of  portions  by  lunacies.— T\w  case  of  K\  parte 
\\r  lays  down  the  law  in  these  cases  so  clearly  that  little  comnient 
is  needed  here.     It  may  bo  added,  howcwer,  that  it  is  important  to 
,,  number  the  great  difference  that  exists  in  satisfaction  in  the  case 
„f  |,ortions  on  the  one  liand,  and  in  the  case  of  legacies  to  creditors 
on  the  other;  for  iv  the  first  case,  equity,  leaning  against  double 
,,„rtions,  is  in  favor  of  the  satisfaction,  so  that  where  tlu' re   is  a 
1.  ."iry  to  or  a  settlement  on  a  child,  and  a  subsecpient  advancement 
,ii"ihe  marriage  of  such  child,  such  advancement  will  be  a  satisfac- 
ii,ni  altogether,  if  of  the  same  or  a  greater  amount,  and  if  of  a  less 
,,uount  it  will  be  a  satisfaction  pro  tauto,  but  in  the  second  case 
IS  we  have  seen,  it  is  just  tlie  opposite,  for  e(inity  will  take  hold  of 
,nv  sli-ht  circumstance  as  in  Chancey's  case,  or  Strong r.  Williams, 
to  rebut  the  presumption  of  satisfaction  that  would  otherwise  arise. 
The  principle  upon  which  the  court,  leans  against  double  por- 
tions is  founded  upon  the  idea  that  the  parent  or  person  mioc 
na.r,i<islUes  the  amount,  of  the  portion  or  provision  for  the  child, 
'u,d  that  anv  benetlt  he  afterwards  gives  is  on  account  of  the  obliga- 
tion which  "he  would  otherwise  have  discharged  at  his  death,  and 
tl„s  explains  why  the  doctrine  has  no  operation  in  the  case  of  per- 
sons towards  whom  the  testator  occupied  no  such  relationship. 

Students  are  apt  to  get  confused  between  cases  of  ademption  .and 
silisfactiou,  and  the  matter  has  been  well  explained  thus:  When 
tlu.wiU  is  made  first,  and  the  settlement  afterwards,  it  is  always 
treated  as  a  case  of  what  's  called  ademption  -  that  is  to  say,  the 
,.,,eilts  given  by  the  settle  ,nent  are  considered  to  be  an  aden,nioi 
,.1  the  same  benefits  given  to  the  same  child  by  the  will.  N\  ith 
,,.ference  to  cases  *  *  ♦■  of  a  previous  settlement  and  a  subse. 
.uMUwill  *  *  •  it  is  now  quite  settled  that  there  13  no  diffei- 
.:  cb  tween  the  twc:  cases,  beyond  the  verbal  ;'f  .Tonce  that  the 
„.rm  satisfaction  is  u.ed  where  the  settlement  has  preceded  the 


58  KQL'ITY   CASKS   SIMl'LIFIED. 

,vin,  and  the  term  adcnption  where  the  will  has  preceded  the  >ui. 
;  ment.  lu  substance  there  is  no  distinction  between  the  prmcp.s 
applied  to  the  two  classes  of  cases."     Coventry  ..  Chichester,  .  11 

"^  Wiuf  i-e^-ard  to  the  admissibility  of  extrinsic  evidence  on  th. 
point  of  saUsfaction,  the  rule  against  donble  portions  xs  a  presu,,.,, 
Ton  of  law,  and  like  other  presumptions  of  law,  may  be  rebuU.l 
revidenc;  of  extrinsic  circumstances.  To  vary  or  con  rad.ct  . 
nain  effect  of  a  document  where  there  is  no  presumption  of  !a. 
cln  rary  to  that  effect,  extrinsic  evidence  is  not  admissible ;  but  to 
confirm  tie  plain  effect  of  a  document,  where  there  is  a  presun.p. 
;"on  of  law  contrary  to  that  effect,  extrinsic  evidence  ,s  admissible. 
SnellEq.  257-250;  Indermaur  Ld.  Cas.  Eq.  104. 


Thi 

I  the  g' 

Inient 

|eX|)fO 

WlK 

IwiSi'  S( 

jdcvise' 
j  For  ve 
[order ; 
I  to  the 

1.  ' 
I  caster 
jimul  f 

I    '^ 

I  debts. 

3. 
|char;{ 

4. 
Ithe  pi 


EQUITY    CASES   SIMPLIFIED. 


5i> 


pi-eceded  the  >ut- 
veen  the  principles 
I.  Chichester,  -'  11 

c  evidence  on  the 
,ious  is  a  presuiii|i- 
,  may  be  rebuiii.ii 
y  or  contradict  the 
iresumption  of  law 
admissible;  but  to 
lere  is  a  presump- 
ence  is  admissible. 


ADMINISTRATION  OF  ASSETS. 


DUKE  OF  ANCASTEU  v.  MAYElt. 

[1  Bro.  C.  C.  454;  1  Wh.  &  Tud.  Ld.  Cas.  Kq.  0;51.] 

Thi3  case  is  the  leading  authority  for  the  rule  that 
Ithe  jieneral  personal  estate  is  first  liable  to  the  pay- 
Inienrof  the  debts  of  the  testator,  unless  exempted  by 
lexiness  words  or  by  necessary  implication. 

When  a  man  dies  leavinp  different  Ivinds  of  property,  and  like- 
Iwiv  some  debts,  it  is  a  maiter  of  some  importance  to  his  heirs  and 
lacvisces  which  of  his  property  the  debts  are  to  be  paid  out  of. 
I  For  very  good  reasons  the  courts  have  established  the  foUowmg 
lorder  in  the  liability  to  debts  pf  the  different  properties  belongmg 
Itotlie  testator  at  the  time  of  his  decease. 

1    The  general  personal  estate.    This  was  held  in  Dulce  of  An- 
ca.trr  v.  Mayer.    The  general  personal  estate  is  also  the  primary 
I  (mill  for  the  payment  of  legacies. 

■.>.  Any  estate   devised  for  the    particular  purpose   of    paying 
liKbts. 

;!,  Ileal   estates   whicl    have  descended   to  the  heir,   but  not 
|thar,:ed  with  debts. 

4.  Ueal  estate  devised  .o  particular  persons,  but  charged  with 
|i!ic  payment  of  debts. 
5     leneral  legacies. 
c  Specific  and  demonstrative  legacies  and  real  estate  devised 


60 


EQUITY   CASKS   SIMI'LUIKU. 


specUlciUly  or  by  way  of  residue,  ami  not  being  at  tlie  time  cliarscl 
witii  ilel)ts. 

7.  I'ropevly  over  wliieli  tlie  i)ers()n  wliose  estate  Is  being  admin- 
istered lias  exercised  a  fieneriil  power  of  appointment. 

The  reasons  for  this  order  of  things  have  been  well  put  by  a 
learned  writer.     "  The  order  in  which  the  various  purlions  of  a  tes- 
tator's estate  are  applied  for  the  payment  of  his  debts  has  been  es- 
tal)lished  out  of  a  regard  to  the  testator's  intention.    The  general 
personal  estate  was  long  the  only  fund  to  which  thos',-  creditors 
who  had  not  specialties  binding  the  heir  could  resort,  and  besides, 
cash,  stock  and  movables  came  llrst  to  hand,  and  are  the  most 
ready  api)lical)le,  and  are  the  funds  out  of  which  people  in  their 
lifetime  usually  pay  their  debts.    Next  after  the  general  personal 
estates,  any  special  fund  set  apart  by  the  tertator  would  naturally 
come.    The  heir,  not  being  a  benellciary  within  the  testator's  inten- 
tion, lands  descended  to  him  would  properly  follow  next  in  th.- 
order  of  application.    But  lands  charged  with  the  payment  ol 
<lebts  would,  of  course,  be  applicable  before  legacie'?  bequeathed 
or  properly  specillcally  given  and  not  so  charged.    Again,  there 
seems  a  more  direct  intention  to  benellt  aspecitlc  devi^^ee  or  legatee 
than  to  benefit  a  mere  pecuniary  legatee .    Pecuniary  legacies  must, 
therefore,  go  unpaid  rather  tlian  specillc  devises  or  bequests  be 
touched.    These,  however,  must  be  resorted  to  for  the  payment  of 
debts  as  a  last  resource,  whilst  lands  over  which  die  testator  has 
exercised  a  general  power  of  appointment  are,  in  favor  of  creditors, 
considered  as  supplementary  applicable  after  the  whole  of  the  tes- 
tator's own  property  has  been  exhausted."    Wms.  Real.  Assets, 

108.  ,  , 

In  conclusion  it  should  be  observed  that  the  general  personal 
estate  of  the  testator  is  nvl  tlie  primary  fund  for  tlie  payment  of 
debts,  in  four  cases,  viz. ; 

1.  Where  it  is  exempted  l)y  express  words. 

2.  Where  it  is  exempted  by  the  testator's  manifest  intention :  and 
on  this  point  the  fact  that  the  testator  has  charged  bis  real  estate  is 
not  alone  sullicient,  but  he  must  also  have  shown  that  it  was  his 
purpose  that  the  personal  estate  should  not  l)e  applied. 

B.  Wliere  the  debt  formiag  the  charge  or  incumbrance  is  in  its 
own  nature  real,  e.rj.,  a  jointure. 


:  at  the  time  r.harKe<l 

aal«  it  Ijeing  iidmin- 
int'iicnt. 

I  l)ecii  well  put  t)y  a 
tjus  purlious  of  a  tes- 
lis  flel)ts  lias  been  cs- 
eiitiou.     The  {general 
hich  thos';  crc'.'.ilors 
1  resort,  and  besides, 
1,  and  are  tiie  most 
hich  people  in  their 
the  fjeneral  personal 
ator  would  naturally 
m  tlic  testator's  inten- 
y  follow  nest  in  the 
vith  the   payment  of 
!  legacies  bequeathed 
jargeU.    Again,  there 
ille  devi^lee  or  legatee 
^uniary  legacies  must, 
!vises  or  bequests  be 
to  for  the  payment  of 
■hich  die  testator  has 
;,  in  favor  of  creditors, 
•  the  whole  of  the  tes- 
Wms.  Real.  Assets, 

;  the  general  personal 
d  for  the  payment  of 


Kc^riTY    CASKS    SlMl'Ml'IKI). 


t;i 


4.  Where  the  debt  was  not  contracted  by  the  person  "1"--"^' 
i/being  adndnistered,  but  by  some  one  else  from  whom  la.  o  h  s 
vHulor  took  it,  as  in  the  case  of  a  mortgage  created  by  an  an- 
cfstor. 


lanifest  intention :  and 
arged  bis  real  estate  is 
shown  that  it  was  his 
be  applied. 


incumbrance  is  in  its 


62 


KQLITY    CASKS   SIMriJlIKD. 


MARSHALLING  ASSETS. 


ALDUICH  V.  COOPER. 

[8  Ves.  308;  •-'  Wh.  &Tu(l.  Ld.  Cas.  E<1.  '^-d.] 

At  common  law  spcoiiilty  cri'ditors  {i.e.,  creditors 
whose  riitlits  were  evidenced  by  contracts  under  seal) 
could  coilect  their  debts  from  either  the  real  or  personal 
estate  of  the  debtor,  while  simple  contract  creditors 
( i.e. ,  those  who  hud  no  scaled  document  to  show  for  their 
claims)  were  confined  to  the  debtor's  personal  estate. 
This  distinction  is  now  abolished  by  statute  ;  but  in  the 
days  when  the  old  rule  was  in   force,  John  Cooper 
died,  leaving  real  and  personal  estate  ;  and  he  also  left 
some  8peciall;y  creditors  and  a  simple  contract  debtor 
named  Aldrich.     The  specialty    creditors    got    their 
hands  on  the  personal  estate  of  the  late  Cooper  and 
paid  themselves  out  of  it,  and  the  result  was  that  Aid- 
rich  found    nothing  that  he  co\ild  realize  on,  for  the 
land  was  not  subject  to  his  simple  contract  debt. 

However,  he  found  help  in  the  Court  of  Chancery, 
which  held  that  he  was  entitled  to  stand  in  the  place  of 
the  specialty  creditors,  .s-o/«r  as  the  personal  estate  had 
been  taken  aivay  from  him  by  the  specialty  creditors. 
"A  person,"  said  the  Chancellor,  "  having  two  funds 
to  satisfy  his  demands  shall  not,  by  his  election,  disap- 
point a  party  who  has  only  one  fund." 

The  order  in  which  assets  are  applied  in  the  payment  of  debts,  as 
stated  in  thr  previous  case  (Dulveof  Ancastcr  v.  Mayor,  ante,  p.  5!)) 
only  regulates  their  administration  as  between  the  testator's  own 


I 


1 


vAivvrx  CASKS  siMi'Mrn;i>. 


iV.] 


I). 


rs. 


[I. 


s  {i.e.,  creditors 
•nets  under  seal) 
c  real  or  personal 
ontruct  creditors 
t  to  show  for  their 

personal  estate. 
:atuto  ;  but  in  the 
ce,  John  Cooper 
;  and  he  also  left 
e  contract  debtor 
ditors    got    their 

late  Cooper  and 
suit  was  that  Ald- 
•ealize  on,  for  the 
ntract  debt. 
)urt  of  Chancery, 
md  in  the  place  of 
per.sonal  estate  had 
\pecialty  creditor.^. 

having  two  funds 
lis  election,  disap- 


r.,,ri.senUUiv.-  h-uI  devisees,  and  .Io.h  not  affect  the  r  «ht  o(  tlu 
.    1  10  s  tlH..n»clv..s  K,  rosort  in  the  llrst  instunc.-.  to  al    or  any  . 
funds  to  which  their  claims  extend,     lint  theCourt  o   Chancery 
.,llln«  with  .such  crclitors,  has  c.tabli.sla-l  the  pr,nc  pletha  ta 
,v      ;in«  .wo  funds  to  satisfy  his  .lemand,  shall  nut   l,y  elect     . 

0  tak    a  particular  fund,  disappoint  another  creditor  who  has  on 

1  fund   o  resort  to.     Under  the  eon.n.ou  law  it  sometime   hap- 

d  ulat .:..  havm,  a  debt  which  he  had  a  rl.ht  to  collect  out  o 
,    real  or  personal  estate  as  he  chose,  elected  to  take  it  out  of  H   s 
Llal  estate,  and  thereby  left  nothin,  for  ^'^-^^^^  "^^^^ 
,.,lv  good  as  au-ainst  personal  estate.     In  such  a  case  ec,ult>  put 
,-  M. 'the  shoes;f  A.,  as  to  his  claim.    This  was  called  the  marshal- 

""ona'trvears,  particularly  In  the  United  States  since  the  law  has 
nut  all  kind  of  .lebts  on  practically  the  same  footing,  the  necessity 
(or  marshalling  assets  docs  not  often  arise.  It  is.  however,  some- 
times  applied  for  the  beneflt  of  junior  encumbrancers  of  property, 
and  for  the  protection  of  sureties. 


e  payment  of  debts,  as 
r  V.  Mayor,  ante,  p.  5!)) 
icn  the  testator's  own 


04 


KyriTV    (AMOS    MMI'1,11  m:I). 


EQCITA UnK  MORTdAGES. 


UUSSKr.l.  V.  Ill  SSEI.I.. 

[  1  Uro.  (".  C.  -'•;■•';   1  Wh.  >«c  'rml.  U\.  Cas.  Ki|.  674.1 
•lust   a   cfiitury  airo,  ii   cili/.fii  of  London  wanted  In 
l)onosv  .sonu!  nioiicy,  and  .succc'dfd   in  ^'cttini;  !i  loan 
from  Olio  Russell,  in  whose   hands,  as  a  security,  he 
plaeeda  lease.     The  eitizen   afterwards   became  l>aid<- 
rnpt,  and  Mr.  Russell  set  up  a  right  to  have  the  lease- 
hold estate  sold  to  satisfy  his  debt,  elaimiui;  that  the 
deposit  oftho  (loeument  with  him  constituted  an  eciuit- 
ahle   inortjiasrc   of   the  leaseh.ild.     The    assi.LMiees    in 
l)ankruptey  s"et  up,  on  their  part,  the  fourth  section  of 
the  Statute  of  Frauds,  which  provides  thai    no  action 
should  bo  brought  on  any  contract  for  the  sale  ..f  lands, 
etc.,  or  any  interest  in  or  concerninjj;  them,  unless  the 
ni/reemeut Was   in    writin-,   and   wiiere,   said  they,  is 
there  any  writing  here,  —  nothing  was  done  but  a  sim- 
ple deposit  oftho  lease  in  Mr.  Russell's  hands. 

But  the  court  held  that  the  dei)osit  of  the  lease  con- 
stituted an  diuitable  niortirage.  and  that  the  interest 
should  be  sold  to  satisfy  Mr.  UusscU's  claim. 

Thf  general  topic  of  mortsiaRes  does  not  at  this  day  belong  pecu- 
linily  to  a  ^vorlv  on  e.iuity,  as  the  courts  of  law  now  recpu/o  all 
those  rights  of  the  morttiasor.whlcli  in  former  times  couUl  on  y  be 
proleoted  by  the  Court  of  Clu.ncery.  For  a  concise  history  of  the 
rise  of  thee.iuitable  doctine  relative  to  mortgages,  and  its  triumph 
in  the  courts  of  law,  the  student  is  referred  to  Sncll,  Ec,.,  cap,  lb, 
or  Bisph.  E(i.,  cap.  7. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


^     liS      111112:0 


2.2 


1.8 


1.25      1.4 

1.6 

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itflHM 


EQUITY   CASES   SIMPLIFIED. 


65 


Kussell  V.  Russell  illustrates  the  doctrln.  of  e„ultable  ^oHfi^^l^ 
Thf  pr  n  Ule  upou^vhich  they  are  recognized  ''If »»  ^^j-^J'"^ 

TmP  into  enuity  to  recover  the  deeds,  he  would  have  been  told, 
^leX  na^iX  ^He  who  see.H  e.ulty  must  do  enuity,"  that  he 
must  repay  the  money  before  he  could  have  the  deeds. 

The  Soctrine  of  equitable  mortgages  has  been  Msapproved  of  m 
Kentucky,  Ohio,  and  Pennsylvania. 


()<) 


KQIITV   CASKS    hlMPl.lFIKl). 


TENANCY   IN    COMMON ~- EQUALITY  IS 
EQUITY." 


LVKE  V.G1HSON-T.AKK  v.  CRADDOCK. 

.n...O..Ab.-KP>-^';>^Vl..^Tu...Ui.Cas.E.,.i:T,3P.Wr„s. 

^'        '  i-K.    1    Wll.  vV   Tu.l.  U\.  CU9.  lMl.l.'.».] 

Kivo  luMs..,.  i>uv..hus.l  a  place  culled  West  Tl^orock 
Lovel,   Vom  tbc  Commissioners  of  Sewers  ami  the  con- 
veyance was  nmde  to  them  as  joint-tenants  u.  ie  ,  b  t 
Ihey  contribnted  rateably  to  the  purchase,  wh.ch  va. 
^        purpose  of  draining  the    Level.     Several  ot 

on  die  I.     Tl>e  court  decided  that  they  were  tenants 
tliLm  uic  I.  purchase  was  for  the  pur- 

though  otherwise  at  law. 

veyanceto  th«.nsclve.  ''"^\^'''-^'^^/^;:'';'.'^;'-\,iu  „«  to  the  survivor. 
,,;,„  u.e  death  of  one  of  ^^^^  :Z^volnntatu  except, 
The  maxim  being  ,ns  ««'-«^^'^'''  '/^'"tV.re  has  always  been  an 
in<'-H>.  >»  ^^-  -^V*  Tsl^n  •;  >  ;w  or'^^^^  acrrcsceJi  inter  ner- 
exception  to  ti.e  rule  of  """^^  '"-;''  ''^' ,;„,,,j  _  for  the  beneflt  of 
rMores  pro  l.nc>rcAo  co.uu.rcu  '«  "'""^J"^;,,  T^ng  merchants. 

as  " equally  among,     or  «ora8  i  ^^^  transactlou, 

ence  of  tlmt  sort  arises  in  equ.tj  from  the  n^^^^  But  there   is 

as  in  partnership,  etc.    Morley  v.  Bird,  d  Ves. 


ifelM 


EQUITY   CASES    SIMl'LIFIEl). 


•57 


JALITY  IS 


lADDOCK. 

E.1.1T7;  3P.Wm9. 
171).] 

\  West  Thorock 
ers  and  tho  cou- 
iiints  in  lee,  but 
luise,  which  w:is 
vel.     Several  of 
ley  were  tenants 
was  for  the  pnr- 
rrh  one  of  these 
for  thirty  years, 
/'said  the  Chan- 
inimon  in  equity, 

urchasers  take  a  cou- 
re  joint  tenants^  aud 
11  g;o  to  the  survivor. 
imce  volnntati.  except, 
i  has  always  been  an 
accrescendi  inter  mer- 
?(  — for  the  beuettt  ol 
ice  among  merchants. 
Hows  the  law,"  It  was 
wlthstaniling  the  lean- 
preference  to  a  joint 
lore,  either  by  way  of 
e  words  of  severance, 
;ect,  or  unless  an  infer- 
ture  of  the  transaction, 
8.  G31.     But  there   is 


another  maxim  of  equity,  vi..'.  "  Equality  is  equity."  Act  ng  on  this 
court"  of  c-.iuily  lean  strongly  against  joint  tenancy  with  its  one- 
sided ri"hl  of  survivorship;  for  though  ead.  joint  tenant  has  an 
,..,ual  chance  of  being  the  survivor  and  getting  the  whole,  yet  this 
is  only  an  quality  in  point  of  chance,  for  as  soon  as  one  dies  there 
is  an  end  to  the  eciuality  between  them.  Au.l,  therefore,  the  c<iual 
certainty  of  having  an  absolute  cpuil  share,  or  a  share  proportioned 
to  the  amount  of  the  purchase  money  advanced,  Is  considered  the 
far  t-igher  and  truer  equity  than  an  e(|ual  chance  of  having  the 
whole  or  none  of  the  property.  Snell,  E.i.  i;W.  And,  therefore, 
courts  of  equity  will  lay  hold  of  any  circumstances  from  which  it 
can  reasonably  be  implied  that  a  tenancy  in  common  was  intended. 
In  the  following  cases  the  parties  will  be  held  tenants  in  com- 
mon:— 

1.  Where  the  purchase  money  is  paid  in  uneqiinl  proportions. 
;;.  Where  money  is  advanced  in  equal  or  unnunl  proportions  by 
persons  who  taiiea  mortgage  to  themselves  jointly. 

3  In  partnerships  and  commercial  transactions,  -  following,  of 
course,  the  rule  of  law  in  this  instance.  But,  notwithstanding  the 
leaning  of  equity  to  a  tenancy  la  common  as  giving  really  the  true 
ciuality,  yet  if  property,  instead  of  havinji  been  ;)i(rc/u(.sccZ  for  a  part- 
nership, has  been  devised  to  the  partners  as  joint  tenants,  and  used 
by  them  for  partnership  purposes,  they  will  still  be  joint  tenants, 
and  not  tenants  in  common,  unless  by  express  agreement,  or  by 
their  course  of  dealing  with  it  for  a  long  period,  an  intention  to 
sever  the  joint  tenancy  may  be  inferred. 

In  those  cases  in  which  equity  considers  a  tenancy  in  common 
to  be  created,  the  survivor  is  treated  as  a  trustee  for  the  represen- 
tatives of  the  deceased  person,  an  implied  trust  being  created, 
founded  upon  annnexpressed  but  presumable  intention.  ludermaur 
Ld.  Cas.  Eq.  41. 


08 


EQUITY   CASES   SIMPLIFIED. 


FEN. 


ALTIES  AND  FORFEITURES. 


SLOMAN  V.  WALTER. 

tlBro.C.C.4I8;-.VVh.&Tad.Ld.Cas.Ea.l0ai-] 

1    Walter  were  partners  in  the  Chapter 
Sh,man  a.ul   ^^  f  ^^  ^f'      .,^  ^....^cd  between  them 
Coffee  House,  aiul  it  had  been  a 

'";„;!■  conn  o,  Canccy  de.U,«.  '•■- S'™- ::C^ 
„  penalty  »  "«e  lo,l  ™;;'/„  „y„,e„t  of  the  object  is 

really  incurred. 


^^ 


KQllTY    CASKS   SIMl'LIFIED. 


69 


URES. 


s.  E(i.  lO'Jl.] 

ill  the  Chapter 
id  between  them 

particular  room 
rrcement  SU)man 
'long  afterwards 
Icsired  the  room, 
Valter,  therefore, 
ond  for  the  peu- 
lourt  of  Chancery 
ctin^,'  tlie  amount 
itual  damage  sus- 

iit  Sloman  was  cn- 
vule  I'i  that  where 
iro  the  enjoyment 
it  of  the  object  is 
■the  deed,  and  the 
lecure  the  damages 


PEACHEY  V.  DUKE  OF  SOMERSET. 

[I  Str.  447 ;  2  Wh.  &  Tud.  Ltl.  Cas.  Eq.  1082  ] 

K  tenant  of  the  Duke  of  Somerset  made  leases  of 
the  property  he  held,  felled  timber,  and  dug  stone 
•L'  it  and  did  other  acts  which,  at  law.  constituted  a 
foX.ture   of  his   holding.     Finding   Inmself   ui   thi. 

•  kt ,  the  tenant  asked  the  Court  of  Chancery  to  relieve 
Efi-om  the  forfeiture,  if  ho  should  make  compensa- 
tion  to  the  landlord  for  what  ho  had  done. 

Lut  the  court  answered  that  it  could  not  help  h.m 
As  there  was  no  actual  damage  done,  the  court  could 
it  decree  any  compensation,  and  the  power  to  give 
eoLperatiouw^^^  tie  only  ground  on  which  it  could 
exercise  jurisdiction . 

.(f aWa   maxim  •  "  Equity  looks  to  the  Intent 

Acting  --'^\^^^'f^^^'':,  Z^^,,  of  equity  frequently  relieve 

ratuer  than  to  the     °J";      ""^"J'^^lch  at  law  the  parties  have 

against  penalties  and^^^^^^^  -»«'  °^  '^'^  ^'"'''  "" 

ncurred  by  their  acis  «i  where    com- 

to  penalties,  Is  given  as  a  rule    n  t-o  ca    ..    1)       ^^^^^^  ^^^ 

pensatlon  can  be  made,    ""^."^'^'^^iii  relieve  the  party  on 

thereof.  nutinirulBh  between  a  penalty  and  a  sum 

Care  must  be  taken  to  f  «;i"«"j;'\  """  j^'  ,o„ows  that  be- 
whlch  is  really  U-luldated  ^'^'"''Be;  ""'/'"Von  breach  of  a  con- 
cause  parties  stipulate  tba  -/""'^Jf;,^\j:lrrt\vill  always  so 
tract,  "as  and  for  liquidated  ^^'°'\f''\.^^'l\^^,A,  n  may  be  a 
consider  the  sum,  for  ««^7'";J''"^,';f  " 'V  (S  o  Kemble"  Far- 
penalty  in  the  disguise  of  l»'l»'<i'^^«'*,^''""'^f 'V ,, J,!  vol  I  .  P- 126.) 

But  where  the  sum  stipulated  to  be  paid  is  reaiiy  a 


■i 


70  KQriTV   CASKS   8IMPLIF1K1). 

«.d  .„™a.». ..»-  .„.  c„„r.  «,..  no.  ,...*.     Th^l-f -;[ 

aifflcult  to  dettrmloe,  and  d.pends  upon  the  comttuMKm 


JiQUITV    CAaE«    SlMl'LiriEl). 


71 


CONTRIBUTION-^' EQUALITY  IS  EQUITY 


TyERING  v.  EARI.  OF  WINCHEI.SEA. 

[1  Cox,  318;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  100.] 

Thonms  Dcring,  Esq.,  having  boon  appointed  a  col- 
lector of  customs,  gave  three  ditlerent    bonds  to  the 
Crowu  for  the  due  performance  of  the  duties  of  his 
office.     In  bond  No.  1 ,  his  brother  Edwivrd  was  suiety  ; 
in  bond  No,  2,  the  Earl  of  Winchelsea  was  surety,  and 
in  bond   No.   3,  Sir  John  Raus  figured  in  the  same 
capacity.    Collector  Dcring  did  not  mtdie  so  good  an 
officer  as  his  friends  and  the  government  expected  ;  he 
was  addicted  to  gaming,  and  when  his  books  were  ex- 
amined one  day,  he  was  found  to  be  a  debtor  to  the  gov- 
crmnent  to  the  extent  of  £3,883.     This  sum  the  Crown 
iccovered  by  bringing  suit  on  bond  No.  1,  whereupon 
Edward  filed  a  bill  against  the  Earl   of  Winchelsea 
and  Sir  John  Raus,  in  which  he  aslced  tliatthey  should 
contribute  their  proportions  of  the  sum  he  had  paid 
the  Crown  on  the  judgment  oil  his  bond.     Winchelsea 
and  Raus   tried   hard    to   escape   contributing    their 
shares,  but  the   court  held  that,  though  they   were 
l)ound  by  different  instrument?,  they  must  contribute, 
as  the  doctrine  of  contribution  amongst  sureties  is  iioi 
founded  in  contract,  but  is  the  result  of  general  equity, 
on  the  ground  of  equality  of  burden  and  benefit. 

At  common  law  no  contribution  could  be  enforced,  though  in  re- 
cent times  the  common  law  courts  have,  in  an  indirect  way,  admln- 
istared  relief.    But  the  remedy  given  by  courts  of  equity  is  in  every 


72 


EQUITY   CASES   SIMI'LinKD- 


Wfty  superior,  for  lliero  Is  tlils  liui)ortiiut  lUslinctiou  between  con- 
trll)Utlon  in  equity  and  at  common  law ;  iu  nqiiUy  the  contribution  Is 
with  reference  to  the  time  when  It  Is  sought  to  be  enforced,  but  at 
common  law  with  reference  to  the  number  of  sureties  originally 
liable.  Thus,  A.,  B.,  and  C.  being  sureties,  A.  is  forced  to  pay  the 
whole  amount.  B.  has  become  Insolvent;  nevertheless  at  common 
law  A.  can  only  recover  a  third  from  C,  though  in  equity  lie  can  re- 
cover half.  Further,  if  a  surety  die,  contribution  can  be  enforced 
in  equity  as  against  his  representatives ;  but  at  common  law  the 
surviving  sureties  only  can  be  sued. 


EQtnV   CASKS   HIMI'LUIED. 


78 


tioii  between  con- 
tho  contribution  Is 
>c  enforced,  but  at 
.sureties  originally 
<  forced  to  pay  the 
theless  at  common 
n  equity  he  can  re- 
)n  can  be  enforced 
i  common  law  the 


MARItlED  WOMHX-F.qriTY  TO  A  SETTLE- 
MENT- •  UK  WHO  SEEKS  EQL'ITY 
MUST  DO  EQilTYr 


L.A»Y  ELIllANK  v.   MONTOLIEU. 

[5  Ves.  7M;  1  Wh.  &  Tud.  I.d.  Cas.  E(i.  4l'4.] 

I  am  the  Lady  Ellbank, 
Of  all  wives,  I  have  thank 
That  ceek  their  goods  in  the  chancery. 
Wives'  equity  to  settlement 
Hath  worshln  and  establishment, 
And  strength  of  days  by  this  decree. 

Seven  years  I  strove  there  with  rr'y  lord. 
And  plucked  the  flower  of  three-.old  word. 
In  triple  doom  and  mastery. 
So  speiiks  the  lieroiue  of  this  celebriitecl  case  in  the 
lays  of  the  Apprentieo  of  Lincohi's  Inn.'     But  about 
the  case  itself  there  was   very   little   poetry,   for  it 
tiroso  and  was  decided  in  a  place  where  poetry  is  rathei" 
out  of  place  —  the  Court  of  Chancery.    A  rich  sister  of 
Lady  Elibank's  had  died  intestate,  and  without  chil- 
dren, and  she  was  therefore  entitled  to  a  nice  liltle 
share  of  money.     When  she  applied  to  the  administra- 
tor for  some  of  it,  the  latter  blandly  produced   two 
bonds,  executed  by  Lord  E.,  and  which  were  an  ac 
knowledffment  of  a  debt  due  from   Lord    E.  to  the 


'  Leading  Cases  done  Into  Kuglish.     By  an  Apprentice  of  Liu- 
coin's  Inn,  London,  187'!. 


74 


KyiriTV    CASKS   SlMPMllKI). 


;uln.inistriit..r.     "Ah   ^^h■^\v^vv  shuiv   vmi  may  .laim 
lV„.nv(.ur  sistcr-si'stali,"  iH-Lm-s  l.-ally  to  your  lius. 
I,.m(l,'l  pioposo  to  votuin  it  to  pay  his  dcht  to  iup," 
.ai.l  tl.o  ud.nini.tnitor.     Lmly  KlilKinl^,  tluMvupon,  dwl 
ii  viM-y  impreccilcnt.-d  thin-r,  —  -^lio  Hl.-»1  a  l.iH  ni  (Mpi.ty 
iitraiiist   ll.c    adininistralor    aii.l    Iht    iiushaiul.     Tlio 
(Miaiicollor  (Iccidoa  in  hei"  lavor,  and  laid  it  down  tliat 
ii  inanii'd  woman  may  maintain  a  suit  in  chancery  to 
ast^cit  \n'Vr,,nih/(o  a  srHhrnvnt  on  herself  and  hcrclnl- 
drcn,  out  of  propcrlv  to  wliicli  she  is  entitled,  and  as 
it  appeared  to  him  that  the  sctthnncnt  which  had  hcen 
made  on  her  on  marriajic  was  inadequate,  ho  decreed  a 
further  settlement  in  her  favor. 


MUllUAY   V.  LORD   EI.IIiANK- 

riOVes.s^;  1  Wh.  >>'  Tud.  I.I.  .'as.  i:.,.  4:f'-,  in  Ves.  1,   1  Wh.  & 
TiKl.  La.Cas.  I':<i.4:i'.'.J 

Lady  Klii)ank  unfortunately  did  not  reap  the  fruits 
of  her  pluck.     After  the  decree  in  the  last  suit,  but  be- 
fore any  .settlement  in   pursuance  thereof  .had   been 
n.ade,  she  died  intestate,  and  another  bill  was  filed  by 
her  infant  children  for  the  carrying  out  of  the  settle- 
ment in  their  favor,  notwithstanding  her  death.     They 
were  successful.     The  court  decided  that  the  wife  ob- 
tained by  the  decree  in  the  suit  of  Lady  Elibunkv. 
Montolieu,a  jud-ment  for  the  childr.n,  liable  to  bo 
waived   if  she  thought  proper ;   otherwise  to  be  lelt 
standing  for  their  benefit  at  her  death. 

Atcoraraou  law  a  marriod  woman  had  very  few  rights  o(  prop- 


iia 


Kgi  riv  <\sr.«  SIM  III  1 1 1.1). 


75 


III  luiiy  «'l:»im 
to  your  liii!^' 

(k'l)t  to  niP," 

lii'ii'upoii,  di'l 
hill  ill  (M|uity 

ushiiiul.     'I'Ih' 

I  it  <lt)wn  that 

II  chuncery  to 
if  iukI  lu'i-  chil- 
iititlcd,  iind  as 
khiih  had  l>ccn 
;,  ho  docrced  a 


INK. 

;i  VcH.  1  i  1  Wh.  & 

reap  the  fruits 
ast  suit,  but  be- 
M-cof  .had  been 
)iU  was  tiled  by 
It  of  the  settle- 
n-  death.  They 
hat  the  wife  ob- 
iady  Elil)auk  v. 
.11,  liable  to  be 
rwise  to  be  left 


,  ,i.v      An  uniimiTi.'d  woman  wlio  ..wiif.l  |)r..|..Ml.v  mltiiil  tl.':>l  ^vltl• 
II  „"s  If  nIk!  w.to  iv  mini,  hut,  on  l.cr  nmiTli.!:c  luT  liii.sbiiii.l  j;"l  i'  ••>"  - " 
l,..r  iviil  proiuTtv  for  I>1>*  Hf^".  I'-'r  I'l''-*"""'  I'l'op^Tly  .il)-*<)lnU'l.v,  iin.l 
l.i.rriKlitsol  action  (cullrd  W.",,,.h  in  action)  if  lie   took  tlicni  int.. 
l,is  |,,.s.m!.sHl,.n  ilnrlnK  the  covcrlnre.     Unt,  wliile  witl.  one  l.a.i.l  Uu- 
law  took  away  her  properly  ilffhtH,  It  liave  her,  In  their  pluc.',  s.v- 
,.nil  considerable  linmnnitles.     She  coidd  not  be  sued  on  any  con- 
tract she  ini-ht  make.     She  could  not  be  sue.l  even  If  her  husban.l 
m'tilected  to   provide  her  with  necessaries;  for  in  this   case   she 
.....ild  HO  far  bind  him,  that  those  win-  furnished  her  with  articles  of 
subsistence  niiuht  sue  hlni.     M.mby  v.  Scott  and  cases  .s<-;.,  I  Luw- 
K.,n's  I.d.  ('as.  Slnip.t.V    The  theory  of  ih.'  common  law  was,  that 
,lie  husband  took  the  wife's  pro|.erty  in  consideration  of  the  oblipi- 
tion  which  he  contracted  on  marriage,  of  maiutulniuij  h.r  an '.  her 
chllflren.     But  It  very  often  happened  that  the  husband  did  not  do 
his  duly  in  this  r.'spect,  -  for  lie  mif,'ht  alh'U  or  s,|uander  tlie  prop- 
frty  whiclihis  wifebrouuht  him,  and  the  law  had  no  means  of  pre- 
venting him  from  doln«this,  or  of  enforcing  his  marriaije  ..'.)lipi- 

The   Court    of    I'haucery   saw   this,   and    straightway   iuvL-ntcd 
ft    method    of    remedylusj    this   Injustice.     Now   and  then  a  hu~ 
band  was  forced   to    resort    to  a  court  of    e.|ulty  In   order  i.- 
,.rt  possession  .f  i-  ■  p^rty  to  which  his  wife  was  entitled;  and  in 
Mich  eas.'s  the  Chancellor,  aotlnf  upon  the  maxiii,  "  He  who  seeks 
,M,ulty  ...  .Kt  do  ofpdty,"  refused  to  help  him  unless   he  agreed  to 
settle  a  portion  of  It  on  his  wife  for  her  separate   use.    This  wasj 
called  the  tr(/<-'.s  n/uity  to  a  seitlanent,  and  though  at  first  only  en-, 
lorced,  when  the  husband  was  compelled  to  resort  to  the  assistance 
.,f  chancery  to  reach  his  wife's  property,  the  courts  of  equity  after- 
wards went  further,  and  in  Kllbank  r.  Moutolleu,  decided  th.at  this 
settlement  could  be  claimed  by  the  wife  coming  Into  court  herself 

as  a  i.laintlff.  ,     .  .  ..  , 

It  should  be  remembere.l  that  the  equity  to  a  settlement  is  strictly 
personal  to  the  wife,  and  the  children  have  no  Independent  e<,uity 
of  their  own;  so  that  In  the  case  of  Murray  v.  F.ord  Klibank,  if 
l.ady  Kllbank  had  died  Im'Mc  ikcree,  her  children  would  not  have 
been  entitled  to  any  settlement.  If  the  settlement  on  a  woman  s 
marriage  is  perfectly  adeciuate,  no  further  settlement  will  be  de- 
creed; but  when  a  settlement  is  decreed,  the  amount  to  be  settled 
is  usually,  and  in  the  absence  of  special  circumstances,  one-half  of  the 
property.    If,  after  marriage,  a  settlement  of  property  is  made 


few  rights  of  prop- 


70  KQLITY    CASKS    f^lMl'UKlEl). 

.,o„  tUe  Wife  volunuruy  in  c^-Ocrat^n  o.  her  ^uity  t.  a^ 

t,emont.itis  good  as  -f^^l^^^^'^JZ^^^^.^on^^eeum.^et 
the  circumstances,  have  decreed  one,  nuu    pi 
It  lor  the  purpose.    Inderraaur  Ld.  Cas.  i^q.  f  »• 


Ml'MKlKl). 

ration  of  her  equity  to  a  snt 
irs  if  the  court  would,  under 
had  application  been  made  to 

3as.  Eq.  C8. 


EQUITY   CASES    SlMl'LIFIKD. 


77 


MAIiliJED  WOMEN --BIGHTS  AXD  LI  ABILITIES 
AS  TO  SEPARATE  ESTATE. 

JAQUKS  V.  METHODIST  EPISCOPAL  CHURCH. 

[17  Jolius.  548.] 

Mrs.  Jaqucs  bein-  tho  owner  of  considerable  i^ul 
;uul  perso.uil  e.tate,  and  wishin-  to  keep  it  out  of  her 
uitcnded  husband's  dutches,  before  her  marriage  con- 
voyed it  to  trustees,  to  hold  it  iu  trust  for  her  sepa- 
rate use  after  her  marriage,  during  her  natural  lite, 
,nd  then  to  the  use  of  those  to  whom  she  should  devise 
it  ],y  her  last  will  and  testament.  Before  her  death 
Mrs.  Jaques  conveyed  the  sei)arate  estate  by  deed, 
iin<l  the  question  was  whether  she  could  do  this. 

The  case  liist  came  before  Chancellor  Kknt,  ot  pious 
memory,  and  he  decided  that  as  the  deed  of  settlement 
of  the  separate  estate  pointed  out  the  particular  mode 
in  which  she  might  dispose  of  it,  this  method  must  bo 
considered  as  the  limit  of  her  power,  and  as  it  pro- 
vided  that  she  shouhl  convey  it  by  will  she  could  not 
convey  it  by  deed.»     But  in  the  Court  of  Errors,  the 
Chancellor's  decision  was  reversed,  and  the  correct  pnn- 
ciple  was  declared  to  be  that  -  unless  specmUy  re- 
strained  by  the  instrument  creating  the  separate  estate, 
a  married  woman  is,  with  respect  to  that  estate,  a  feme 
sole  in  equity,"  and  may  dispose  of  the  estate  m  any 


1  Methodist  Kpiscopal  Church  v.  .laques,  3  Johns.  Ch.  77. 


^iBMHai 


7g  r,(il  ITY    CAM-'^    S1MI-I.I1'IK1>. 

wiu'sho  i,Uv.s<..s  a.ul  a  siKH-iikatioti  in  the  clcod  of  set- 
tlement ;>f  partieular  nu,dos  in  which  she  may  cLspo^e 
cfthe  estate,  will  not,  of  itself,  restram  her  Irom  d.s- 
posinir  of  it  ill  any  other  manner. 

Atc^nmon   law.  as  we   hav.  saH.  a  .uarrU...  -""^    -f^;;^ 
n^ake  a  contract  hin.liM,    herself  or  her  T^operty      1m,    tj    how 
Tver,  create.1  a  separate  estate  for  her  and  ^-ave  her  the   powci 

^"  tI:  i^H^'l^iio"  of  e.pmy  o.er  the  property  of  ."-lea  wo.c„ 

Thp  rule  of  cduity,  has  in  short,  been  aaopled  by  the  Lt^iM.uur  , 
Z  a    the  s:,n./'thne,  the   power  of  a  -"---l  -7;^  ,      ^ 
property  and  her  obligations  regarclin,  U,  as  ^   '^''^ll^' 
courts  of  chancery,  have  been  ^''l--;'^"^  ;^7':'^f  !  J  .^ ^.^ 
her  power  of  disposlnf,'  %f  her  estate;    ('-')    Us   liability 

contracts. 

1     Vs  to  her  separate  estate,  a  married  woman  haa  in  equity  the 

:    aUn    Vt      sec  Tullett  ..  Annstron,:.  post,  p.  80.    This  .s  he  gen- 

separate  estate,  unless  such  power  is  expressly  i,iNtn  n 

Instrument  creatinn  it. 

o     V  married  woman's  separate  estate  Is  liable  for  her  debts  and 
2.  A  ™^  '•'^"  "   "^^;         '  ,„^kes  a  debt  his  property  is  liable  to 

;S^;Sr  r  A^;;n':>;^ultyhavln.  created  a  -par^o  estate. 

;:;:;abled  a  married  ~- -"-^^  -^J-^:^:^ 

The  true  rule  seems  to  be  that  It  is  liaoic  lor 

,.H  ivhirh    iud^lnsr  from  their  nature,    u  i"«j 

estate. 


^■^ 


Kl>. 


1  the  deed  of  set- 
she  muy  dispose 
tihi  her  from  dis- 


KQCITY    CASE8   8IMI'M1IK».  '• 

rule  as  to  her  power  toblud  it  for  her  eugageineuts. 


c'd  womim    co\iUl  not 

jpc-rty      Kqiiity,  how- 

jrave  her  the  power 

rty  of  married  women 
Ls   power  aw  to   tnintK. 
irate  use  of  a  nuirrleil 
trustee  of  the  property 
n  later  times,  anil  es- 
property  of  a  marrieil 
grasp  of  the  husband's 
bts  and  engagements, 
ed  by  the  Legislature, 
rrieil  woman  over  her 
,  as   laiil  down  by  the 
fclared.    These  are  (1) 
)    Its   liability   f»r  her 

ronian  has.  in  eiiuity  the 
nmarrled,  except  in  one 
restrained  I)y  the  deed 
,  p.  80.  This  is  the  geu- 
th  Carolina  and  a  few 
,he  power  to  convey  her 
ressly  given  her  by  the 

liable  for  her  debts  and 
his  property  is  liable  to 
jated  a  separate  estate, 
lebta  in  respect  to  it,  and 
)lc.  It  is  not,  however, 
)f  a  man  or  a  feme  sole. 
for  all  debts  which  she 
(m  their  nature,  it  may 
1  charge  on  her  separate 


i^amm 


If 


EQUITV   CASKS   SlMl'MFIKD- 


MARRIED    WMEN- SEPARATE  ESTATE    AND 
RESTRAINT  UPON  ALIENATION. 


TULLETT  V.  ARMSTRONG. 

[1  Bcav.l;  4  Myle  &  Cr.  ;J77.] 
Nalhiiniol  Hiadford,  by  his  will,  gave  certain  prop- 
erty to  trustees  in  tr.ist  lor  his  wife  lor  life,  with  re- 
n.ahuler  to  his  p-andaaughter,  Mary  Tilt,  for  life    -  ni 
sueh  numner  that  it  should  not  he  antieipatcd,  and  that 
no  husband  should  ao.,uireany  control  over  it."     When 
the  tcstat.>r  died  ^lary  was  nnniarried,  but  m  the  life- 
time of  his  widow  she  married  Mr.  Armstrong,      ihe 
..uestions  which    arose  and  were    settled  in  this  case 
were  (1)  the  eflect  of  a  gift  to  the  separate  use  ot  a 
woman   unmarried  at  the  ti.ne  ;  (2)  the  elVect   ot  the 
gift  prescribing  that  the  property  should  not  be  ant.ci- 

^"'rhis  case  decided  that  both  the  separate  use  clause 
and  the  restriction  airainst  alienation  became  effectual  on 
the  subsequent    marriage,  and    that  such    a  restraint 
against  alienation  is  annexed  to  the  separate  estate  only, 
and  the  separate  estate  has  its  existence  only  during 
coverture  ;  but  that  whilst  the  woman  is  discovert  the 
separate  estate,  whether  modified  by  restraint  or  not,  is 
suspended,  and  has  no  operation,  though  it  is  capable 
of  arising  upon  the  hai)pening  of  a  marriage. 

The  courts  of  equity  havinsj,  as  we  have  .seen,  allowed  the  ^v1fe 

to  .kal  with  her  separate  estate  as  she  plcasca,  and  likewise  made 

able  to  her  e^a^emeats,  it  was  necessary  to  hit  upon  some 

pja  to  protect  the  separate  estate  of  the  wife  both  against  herself 


EQUITY   CASES    SIMPLIFIED. 


81 


V. 


ESTATE    AND 
\iTION. 


■•] 

ivc  certain  prop- 

lor  lite,  with  re- 
Tilt,  for  lite,  "  in 
ioipated,  and  tlmt 
;  over  it."  When 
il,  hut  in  the  life- 
Armstrong.  The 
ittleil  in  this  case 

separate  use  of  a 
I  the  etVeet  of  the 
Dukl  not  be  antici- 


..,ul  her  crcMitoi-H,  (or  this  wan  fienerally  the  object  o(  the  clcoi  iu 
ih .   /u      a  d  .posit.on  of  his  property  to  a  married  woman^   , 
T  e  oran  aloptcl  was  the  iasertioa  in  the  trust  Instrument   o    a 
clause  Unir'  a  restraint  upon  alienation;   declaring'  that  the 
p  opertrru  Fnot  be  used  "  by  way  of  anticipation."    Tins  was 
fnTnS  by  Lord  T.i.ui.ow.  and  sustained  by  the  courts.    Such  a 
es  raTut  was,of  course,  a  violation  of  the  rules  of  properly   for 
what  aimrnowns  absolutely  he  has  always  a  rl.ht  to  al.enale  .f  he 
vLhes-Tdthls  right  cannot  be  taken  away  by  any  conda.on  or 
V   nilt'icm  in  the  u-rant     But  the  courts  of  equity  did  not  stick  at 
':^'X:Z^:^^^^^^  and  the  prohibition  of  anticipation '' 
.id  the  Lord  Chancellor  in  Tullett  ..  Armstrong,    "are  o.,uaily 
rJclures  of  e..uity  and  equally  inconsistent  with  the  ord.nary  rules 

"'  The'Sralnt  upon  alienation,  as  appears  from  the  above  case 
win  no   prevent  tlfe  woman  from  dispoMUR  of  the  property  se    led 
Tn  her  separate  use,  if  she  choses  to  do  so  before  marriage,    r  in 
the  interlalbetwee;  different  covertures;  but  the  restramt  will  at- 
ta  h  whenever  coverture  takes  place.    Bisp.  tq.,  sect.  107. 

The  ru°e  In  Tullett  v.  Armstrong  is  the  law  of  this  country,  ex- 
cept in  Pennsylvania,  Arkansas,  and  North  Carolma. 

c 


separate  use  clause 
l)ecamo  ellectual  on 
t  such   a  restraint 
.'parate  estate  only, 
stence  only  during 
lau  is  discovert  the 
y  restraint  or  not,  is 
;hough  it  is  capable 
,  marriage. 

;  seen,  allowed  the  wife 
ised,  and  likewise  made 
ssary  to  hit  upon  some 
^ife  both  against  herself 


82 


EQUITY   CASES    SIMI'LIFIED. 


ACCIDENT. 


LOSS   OF  DOCUMENTS. 


I^AWRENCE  V.  L.AWRENCE. 


[4L'  N.  II.  10'.).] 

Joseph  Lawrence,  of  New  Hiinii)shire,  was  hardly  the 
kind  of  a  son  to  hoUl  \\\)  as  a  model  to  the  rising  gen- 
eration.    Ho  induced  his  father  to  convey  his  farm  to 
him,  in  consideration  of  his  agreeing  to  maintain  his 
parents  during  their  lives,  and  to  secure  this  promise, 
he  iravc  a  mortgage  of  the  farm  hack  to  his  father. 
Before  the  mortgage  was  recorded  it  was  lost,  and 
when  the  oUl  man  asked  Joseph  for  a  new  one,  he  not 
only  refused  to  execute  a  new  one,  hut  pretended  that 
he  never  had  given  his  parent  a  mortgiige  at  all,  hut  that 
Lawrence,  Sr. ,  had  heen  dreaming  all  the  time.  Then  he 
went  on  to  treat  the  farm  as  his  own  ;  cut  dov/n  the 
timher  and  commenced  to  make  the  most  of  it,     Ti.e 


•:u. 


Kgl  ITY    CASES    SIMl'Lll'lKL). 


83 


old  man  Avont  to  tlio  Court  of  (Mmiipory  and  asked 
tlio  judirt's  to  coiiipt'l  .Joseph  to  inako  him  !i  new  niort- 
fa-n;.  llt'ic  Joseph  reitc-ratt'd  his  story,  that  there 
never  had  hoen  any  inorty:a,iro  at  all,  but  tiie  eourt, 
after  hearing  the  evidenee,  decided  that  he  Avas  a  liar 
us  well  as  an  intrrate,  and  ordered  him  to  exeente  a 
new  mortira-re  of  tiie  farm  to  his  fatlier. 


TS. 


EXCE. 


ire,  was  hardly  the 
to  the  rising  gen- 
•onvey  his  farm  to 
i<r  to  maintain  his 
icure  this  promise, 
ack  to  his  father. 
I  it  was  lost,  and 
a  new  one,  he  not 
)nt  pretended  that 
rage  at  all,  but  that 
1  the  time.  Then  he 
wn  ;  cut  down  the 
i;  most  of  'i,     Tiie 


The  jiirlsfliction  of  tlie  court,  in  this  class  of  cases  comes  un- 
der the  rolluf  against  (tcrident,  which  courts  of  ccjuity  will  fiive. 

By  accident  ill  e(|uity  is  not  meant  some  iiiovitable  casualty  or 
act  of  fiod  or  vismnjor,  but  "  any  unforeseen  event,  misfortune,  loss, 
act,  or  omission  wliich  Is  not  the  result  of  neglijience  or  misconduct 
in  the  party."     .Snell  Imi-  ■*-'<>• 

As  the  jurisdiction  of  e(iuity  in  case  of  accident  is  only  concurrent 
witli  tluit  of  courts  of  law,  the  lormer  will  only  fxivc  relief  (1;  when 
a  court  of  law  cannot  srant  suitable  relief;  (•-')  when  the  party  ask- 
ing' it  has  a  conscientious  title.  Uoth  tliese  tilings  must  concur. 
And  it  should  be  noted  that  where  tlie  jurisdiction  of  equity  has 
once  attached  by  reason  of  there  beinc  orij,'inally  no  remedy  in  the 
matter  at  law,  this  jurisdiction  will  not  be  ousted,  because  the 
courts  of  law  have  voluntarily  detcnu'.ued  to  give  such  relief,  or 
have  been  anthoi  i/ed  to  do  s'l  Ijy  statute. 

The  cases  in  wliicli  eiiuity  will  give  relief  against  accident  are  :— 

1 .  Cases  of  tiint  itwl  destroyed  dneuinents. 

2.  Cases  of  the  imperfect  execution  of  poirers. 

3.  Cases  of  acciilentnl  forfeitures. 

4.  Cases  of  accidetnn!  losses. 

1.  Cases  of  lost  and  destroyed  docnments. —  J jiiwroncc  v.  Law- 
rence, ante,  p.  82,  illustrates  tlie  (Irst  class.  Tlie  interposi- 
tion of  equity  in  the  case  of  lost  documents  arose  in  this 
wise.  Formerly  there  could  be  uo  remedy  on  a  lost  bond  at 
law,  because  it  was  required  that  it  should  be  produced  in  court  in 
order  that  the  defendant  might  demand  oijerof  it,  i.e.,  that  it  should 
be  produced  and  read  in  open  court.    E(iu,ty  then  stepped  in  and 


i^BHfe 


84 


EQl  ITY    CASKS    SIMPLIFIKD. 


remcaiert  this  deffct.    Althousl.  subscuently  courts  of  law  dis 
pensecl  with  this  formalUy,  the  jurisdiction    of  cc.ulty  which  at- 
tached under  the  old  practice  was  still  retained     The  san.e  ru  e 
obtained  at  law  as  to  lost  negotiable  instruments.    This,  too,  has 
been  altered  In  recent  times. 

2.   C</s,..s  of  impn-firt  cx.nUwn  ,,/i.moeM. -Toilet  v.  Toilet,  post, 
p.  8i;,  Illustrates  the  second  class. 

■\.  C„,es    of  acriden(nl  /or/.-,'<urc,s.  -  Bostwlck    r.  Stiles,  post, 
p.  8'.>,  Illustrates  this  class. 

4.  Cnsos    of  accidental  iof.»c». -Jones  v.  Lewis,  post,  p.     Oi', 
illustrates  this  class. 

()„  the  other  hand,  In  the  following  cases  of  accident,  equity  will 
not  relieve. 

1  In  mattes  of  positive  contmct  rmited  h>J  the  act  of  the  parties  - 
A  man  leases  a  house  and  covenants  to  pay  rent  for  live  ye«r;  .  JJ«- 
tl  the  end  of  the  flrst  year  the  house  ^^accidentally  burned  down. 
(See  Lawson's  Ld.  Cas.  Simp.,  Vol.  I.,  p.  105  )  K.,"'  3r ^^j »  "«*  J^; 
neve  mm  from  the  payment  of  the  rent  for  the  rest  of  the  term,  or 
he  might  have  provided  against  the  liability  by  contract  If  he  had 
beett  so  minded. 

..  Whni  both  parties  are  equally  i>mf,ceut.- A.  is  negotiating  for 
the"purchase  of  a  house  from  C.  They  make  a  contract  for  the  sale 
of  the  hou«e,  at  a  price  to  be  fixed  by  B.  during  their  life  Before 
B  makes  his  award.  A.  or  C.  dies.  Equity  will  not  enforce  the 
fale  on  he  ground  of  accident,  for  the  time  of  making  the  award 
wasexpres^y  llxed  in  the  contract  according  ;;>  t'^V'---  "^ 
the  parties,  and  a  different  period  cannot  be  substituted.    Snell,  Eq. 

430. 

3.  mere  the  party  askinu  relief  has  been  yuilty  of  gross  negligence. 

4.  Where  the  party  asking  relief  has  not  a  clear  vested  right. -A 
millionaire,  for  example,  may  Intend  to  leave  A.,  »•>  ^^  C.J^S*; 
cles  of  310,000  each  by  his  will.  Through  some  ace  dent  he  d  es 
before  mak  n.  a  will,  and  A.,  B.,  and  C,  not  being  heirs,  get  no  h- 
in?  Here,  because  they  have  no  vested  right,  equity  cannot  help 
them  Another  Instance  of  this  rule  occurs  In  powers  of  appoint- 
ment!  If  the  donee  fails,  through  accident,  to  execute  a  power 
TqX  cannot  help  him,  unless  it  Is  coupled  with  a  trust,  in  which 


riM 


ED. 

y  courts  ol  law  dis- 

of  c(iulty  which  at- 

ned.    The  same  rule 

aentrt.    This,  too,  has 


ICyUlTY   CA.sKH   HlMl'LIl'IKD. 


85 


hvlter  CU8U  there  Is  some  vested  Interest  to  raise  the  oijulty.    Post, 
p.  88. 

5.   Wiere  the  othor  party  haa  an  equal  fqiiitij,  as  In  tho  case  of  a 
/,f)H«  >i.i  purchaser  for  valuable  consideration  without  notice. 


Toilet  V.  Toilet,  post, 

;wlck   V.  Stllei,  post, 

Lewis,  post,  p.     01'^ 

)f  accident,  equity  will 

the  act  of  the  parties.  — 
ent  for  live  years.  Be- 
identally  burned  down. 
.)  Equity  will  not  re- 
lie  rest  of  the  terra,  for 
f  by  contract  If  he  had 

—  A.  Is  negotiating  for 
B  a  contract  for  the  sale 
ring  their  life.  Before 
y  will  not  enforce  the 
»e  of  making  the  award 
ling  to  the  pleasure  of 
substituted.    Sncll,  Eq. 


niiUy  of  gross  negWjence. 

a  clear  vested  right,  —  A 
iave  A.,  B.,  and  C.  lega, 
h  some  accident  he  dies 
ot  being  heirs,  get  noth- 
ight,  equity  cannot  help 
rs  In  powers  ol  appoint- 
;ut,  to  execute  a  power, 
id  with  a  trust.  In  which 


86 


EQUITY   CASES   SIMI'LIKIED. 


IMPKUFECT  EXECUTION  OF  POWERS. 

TOI.LET  V.   TOI.I.ET. 

[2  P.  Wms.  181>;   1  Wh.  .<:  Tiul.  L(l.  Cii^*.  K'l-  2127.] 

Olio  of  Mr.  TolU't's  ancestors  hiul  *^otUecl  sonic  laiuU 
on  l.ini,  with  a  powof  to  niako  part  of  it  oyer  to  l.i^ 
wife  l.v  ,Zm/,  under  his  hand  and  seal.     Mr.    lollet 
matle  it  hv  7<v7/,  ami  the  eourt,  not^vithstandln,^'  this 
dcfeet,  sustained  it.     "  The  ditlerenee,"  .aid  tlie  Mas- 
ter  of  tlio  Rolls,  "  is  l)ot\vixt  a  mm-.x<'mthn  and  a  de- 
fedire  exrcution  of  a  power.     The  latter  will  always 
bo  aided  in  equity,  under  the  eiiruinstanees  mentioned, 
it   bciiK'   the   duty  of  every    man    to  pay  his  debts, 
and  a  husband  or  father  to  pi'ovido   for  his  wite  or 
child      But  this  eourt  will  not  help  the  non-execution 
of  a  power,  since  it  is  a.^minst  the  nature  of  a  power, 
which  is  left  to  the  free  wid  and  election  of  the  party, 
whether  to  execute  it  or  not,  for  which  reason  equity 
will  not  say  ho  shall  execute  it,  or  do  that  for  hun 
which  he  does  not  think  fit  to  do  for  himself." 

Toilet  V.  Toilet  is  an  authority  for  two  principles;  (1)  that 
)  equity  will  aid  the  defecUve  execution  of  a  power;  but  (•.')  will  not  aid 
I   the  non-execution  of  a  power. 

1 .  Equity  will  aid  the  defective  execution  of  a  poicer.  -  f'"  J"'''"" 
diction  of  the  court  in  cases  of  this  kind,  is  based  on  t».e  theory 
i  at  the  donee  of  the  power  has  intended  to  execute  it,  but  has 
b  en  evented  from  doing  so  by  some  accident  or  r^M.^;'--^ 
equity  will  not,  in  such  a  case,  suffer  the  intention  to  be  defeated 
But  the  aid  of  equity  Is  limited  to  Ave  classes  of  persons,  ^  \z. 
m  V  purchaser  (which  term  included  a  mortgagee  and  a  lessee), 
(2)  a  creditor,  (3)  a  wife,  (4)  a  legitimate  child,  (5)  a  charity. 


mm 


JD. 


E<iUITY    CASKS    SlMri-ll'IKl). 


87 


.'  POWERS. 

T. 

;iis.  E(i.  227.] 

Kit  t  led  sonic  laiul* 
,  of  it  over  to  \\\a 
soiil.     Mr.  Toilet 
withstandiii.u;  this 
•c,"  saitl  the  Mus- 
TCccnUoii  ami  a  de- 
lattor  will  always 
itaiu'os  mentioned, 
to  pay  his  debts, 
Ic   for  his  wife  or 
the  non-execution 
laturo  of  a  power, 
ction  of  the  party, 
lich  reason  equity 

•  do  that  for  him 

•  himself." 

0  principles:    (1)  that 
ver;  but  (2)  will  not  aid 

/  a  power.  —  The  jurls- 
Is  based  on  the  theory 
to  execute  it,  but  has 
:cldent  or  mistake,  and 
itentlon  to  be  defeated. 
classes  of  persons,  viz. : 
iorti;a5;ee  and  a  lessee), 
child,  (5)  a  charity. 


Again,  .■..uitv,  will  n..l  ^-ive  it.  aid  when,  the  will  of  the  donor 
will  1...  thereby  defeated.  We  have  seen  that  in  Toilet  r.  Idlet, 
Mr  T  executed  the  power  by  deed,  when  he  should  have  don.  m.  by 
will  Wice  Mr.  Toilet.  If  he  had  done  the  converse  of  this,  his 
act  would  have  received  no  help.  .V  power  to  appoint  by  will 
cannot  be  exercised  by  deed,  for  the  donor  of  the  pow.rlssui.posed 
to  ititend  that  the  power  shall  be  revocable  durlni,'  the  life  of  the 
donee,  and  this  intention  is  defeated  by  tlie  execution  of  a  deed. 

"  E'i'tit'J  will  not  Hid  thn  w,n-i:rrrniinn  of  n  i>o,r,r.  -  Uecaiise 
where  there  has  been  no  exercise  of  the  power  at  all,  no  Intention 
to  exercise  it  can  be  presumed,  an.l  there  Is  therefore  no  ground 
for  the  Interference  of  the  court.  To  this  rule,  howi  er,  there  are 
two  exceptions :  — 

1.  Where  the  execution  has  been  prevented  by  I'^ud. 

2.  Where  the  power  Is  coupled  with  a  trust.  Withers  r.  Yea- 
don,  the  next  case.  Illustrates  this  exception. 


HS 


Kgt'ITY    fASKS    SIMI'I.IIIKI). 


J'OWEHS  (JOVI'LKlt    WITH  TIU'STS. 


WITHKKS    V.    YEAIM)N. 

[1  Itirh.K-i-l-'l] 

.Tol.n  Wairncr  .lovisv.l  his  iral  ostuto  m..l  othor 
nroportv  to  Lis  ^<.n  (icovj:o,  to  apply  tho  rents  an. 
..olits  t'luM-oof  to  tl.o  use  of  himsdf  an.l  l.is  fannly ,  an<l 
wliat  l.c  should  not  use  up  in  this  way  ho  was  to  -ivo 
or  (U.viso  by  dc'il  or  will  to  his  ((Joorfre's)  HnUlrcn, 
in  su.h  pn.portions  ns  ho  should  think  tit.  (ioorgo 
dird  without  haviu-  oxooutod  this  powor,  but  on  a  bdl 
fil.d  in  ohanoorv,  tho  court  deoidod  that  his  oluldreu 
woro  ontitlod  to  divido  tho  property  ocpially.  "  In  all 
cases,"  sai.l   tho  court,  -where  properly  is  given  to 


one 
\\\ 


,0,  enal.linir  him  to  execute  a  power  in  a  discretionary 
..,„„„.,,  ,uHl  ho  dues  not  exercise  his  discretion  or  exe- 
cute tho  power,  the  class  of  i.ersous  anion-  whoni  tho 
bounty  was  to  bo  distriluited  shall  not  bo  disapi.omted 
bv  his  neirlect,  but  shall  take  c.,ually.  Tho  rule  ot  all 
such  powers  is  that  they  are  trusts  to  be  executed. 


IKi). 


Kyurrv  cawkh  simi-iikikh. 


80 


I  rursTs. 


ACCIDENT.  1 1.    FOIil'KlTl  ItKS. 


1M)N. 

cstuto    mill    (ttlu'i- 

[)l)ly  tho  rents  ami 

iind  his  rmuily.and 

way  ho  was  to  frivo 

(icorjio's)  chihh-iMi, 

tliinktit.  (io(»rfi« 
[lowiT,  l»ut  on  ii  l>ill 
d  that  his  ohihUen 
ty  equally.  "In  nil 
roporty  is  given  to 
iiT  in  a  discvetioniiry 
lis  discretion  orexe- 
iis  aniong  whom  the 

not  1)0  disappointed 
iUv.  The  rule  of  all 
s  to  be  executed." 


HOMTWIC'K    V.   HTII.KS. 

[116  Conn.  I'.ijj 
Mr    H,»stwirk  was  nnfortunato  enough  to  have  his 
p,o,„.rtv   for..elos.Ml  und.-r  a  mortgage.      But    he   had 
;,,;dmnco  to  redeem  it.     Uv  the  decree  of  foreclosure 
itwaM>i-"vided.that  if  he  should  pay  the  un.ountot 
his  del.t  ($:i,72;5.r,())  l.y  the  lifth  day  of  August,  lHh7. 
ho  mi-ht  have  his  property  hack  ;  otherwise  not.     Mr. 
Hostwick  did  not  intend  to  let  this  chance  go  l.y.     He 
wrote  to  his  uncle,  a   man  of  means,  on  the   matter, 
^vho  promised  him  to  let  him  have  the  money  on  the 
third  of  August.     The  third  of  August  came    but  not 
the  money.     IIo  made  other  exertions  with  other  peo- 
„lo.  but  the  time  was  too  short,  aud  two  days  later  the 
f.tal  time  expired,  and  Mr.   liostwick's  laud  beca.ne 
the  property  of  Mr.  Stiles,  tho  mortgagee.     .Mr.  liost- 
wick  thought  this  too  bad,  and  so  did  tho  court  to 
which  he  applied,  for  it  ordered  the  foreclosure  to  be 
reopened,  ami  Mr.  W.  in  have  another  chance  to  re- 
deem     And  all  this  it  did  on  the  ground  ot  accident. 

-  It  is  the  peculiar  province  of  a  court  ot  e<iuity, 
said  Pakk,  J.,  -  to  grant  relief  in  cases  of  fraud,  acci- 
dent, or  mistake,  where  there  has  been  no  tault  on  the 
part  of  the  party  seeking  relief.  *  *  *  'Hh-P'o^- 
tion  is,  whether  the  tacts  of  this  case  are  suthcm.t  to 
.how  that  the  failure  to  pay  the  respondent  (hues 
on  tho  fifth  day  of  August  was  occasioned  by  ain-ident 


90 


EQllTY    CASKS    SIMIMIKIKD. 


without  aiiv  fault  («r  ut'irliirenco  ou  tlu'  part  of  tluJ  1 

tio.-.cr.     If   thf    petitioner  hail  colloc-tfd  the  anu.u 

and  Iwul  it  in  his  house  to  pay  tiio  respondent  on  tl 

day,  hut  on  the  ni.L'lit  previous  his  dwelling  had  tak 

lire,  and  the  money  had  heen  consumed,  no  one  \voi 

d(.ul)tthaL  the  non-payment   was   the  result  of  uo 

dent.     If  the  petitioner  had  made  arrangements  w 

u  hank,  and  they  had  agreed  to  furnish  the  money 

certain  security,  and  the  security  had  heen  given,  1 

owinoto  some"  sudden  and  unexpected  revulsion  ui 

i.anehd  atfairs,  they  had  refused  to  fulfil   their  agi 

ment    at    the  last  hour,    could    there  he    any   do 

that  the  failure  t..  pay  according  to  the   decree  ■ 

owhig  to  accident  ?     Vvherein  does  this  ditl'er  in  p 

ciple'v     The  uncle  of  the  petitioner  was  hoth  uhle 

willimx  to  furnish  the   nioney.     He   had  agreed  t( 

so,  and  looking  at  prol)al)ilities    in    .elation  to  ful 

events,  it  was  as  morally  certain  that  the  money  w( 

be  furnished,  in  the  case  of  the  uncle  as  in  the  case  of 

bank.     There  is  a  decree  of  uncertainty  in  regar 

all  cxi)ectations,  and  no  more  ought  to  be  requirei 

relation  to  future    obligations    imposed    by   law,  1 

that  such  measures  shall  be  taken  to  fulfil  them  as 

render  it  reasonably  certain,  so  far  as  human  sagi 

can  foresee,  that  they  will   l)e  performed.     If 

measures  are  taken  and  they  result  in  a  failure  to 

as  the  decree  reipiires,  how  can  it  be  said  that  ix  \ 

ha.s  been  guilty    of  negligence?     Even   in  actior 

law,  no  greater  degree  of  care  is  reciuired  to  avoi 

juries  to  others   wliile    in   the  performance  of  l:i 

acts,  and  if  dangers  result  they  arc  regarded  as  > 

sioned   by  inevi'taide   accidents.     Applying    this 

and  considering  the  case  at  the  ti>ne  the  promise 


^■M 


EQUITY    CASES   SIMI'MI'IKD. 


<tl 


CO  on  tilt'  part  of  tlio  po- 
ind collci'tt'd  the  iiinoiiut 
V  tln5  rcspondoiit  on  tliat 
a.s  his  dwelling  Inid  taken 
,  oonsunu'd,  no  one  would 
was  the  result  of  ucci- 
miido  iirrangemcnts  with 

I  to  furnish  the  money  on 
urity  had  been  given,  hut 
iiiexpccted  revulsion  in  fi- 
used  to  fulfil   their  agrec- 
)Uid    there  be    any   doubt 
ording  to  the   decree  was 
in  docs  this  ditl'er  in  prin- 
'titioner  was  both  able  and 
L'V.     He   had  agreed  to  do 
lities    in    relation  to  future 
•tain  that  the  money  would 
lie  uncle  as  in  the  case  of  the 
:)f  uncertainty  in  regard  to 
»re  ought  to  l)e  required  in 
ins    imposed    by    hiw,  than 

taken  to  fultil  them  as  will 
n,  so  far  as  human  sagacity 

II  i)e  performed.  If  such 
■V  result  in  a  failure  to  pay 
'  can  it  be  said  that  a  party 
once?  Even  in  actions  at 
!are  is  rctpiired  to  avoid  in- 

the  performance  of  lawful 
;  they  arc  regarded  as  occa- 
ilents.  Applying  this  rule 
it  the  time  the  promise  was 


„,ade,  was  there  anv  reasonable  doubt  that  wuuUl  sug- 
,.,..t  itself  to  a  man  of  prudence  and  sagacity  that  the 
n.onev  mi-ht  not  be   furnished?     The  relation  ot  the 
p,rties  was  that  of  uncle  and  nephew.     The  uncle  had 
Ureed  to  furnish   the  money.     The  case   removes  all 
.loubt  of  M.s  ability  to  do  so.     He  knew  the  nnport- 
,„ce  of  fultilling  hi.  promise.     He  knew  his  nephew 
uus  dependinir  upon  him,   and  that  it  wouhn)e  ^yorse 
,!ian  cruelty  to  disappoint    him    at   the   last.     Lvery 
person  in  like  circumstances   svould  be   led  to  suppose 
•hat  the  promise  of  tiie  uncle  was  equivalent  to  having 
,hc  money  in  hand.     We  think,  therefore,  that  the  pe- 
titioner was  prevented  fvom  paying  the  respondent  the 
amount  of  his  elaim  on  the  third  day  <.f  August    as  he 
iKid  intended,    by  the    happening  of  some  nntorseen 
ovent  over  which  the   petitioner  had   no  control,  and 
that  he  was  consequently  free  from  iault.  " 


irtHaMMH 


92 


EQUITY    CASKS    SIMPLIFIED. 


ACCIDENTAL  PENALTIES. 


JONES  V.  LEWIS. 

[2  Vts.  Sr.  240.] 

Mrs,  Lewis  w;is  tlio  administratrix  of  her  husbimd's 
estate.  (^ilUa  "Po"  l^y  ^hc  Court  of  Chancery  to 
deliver  certain  goods  to  the  legatee,  she  answered 
that  thi3  was  impossible,  as  they  had  been  stolen 
from  her  solicitor  to  whom  she  h.ad  entrusted  them 
tor  safe  keepinir.  The  legatee  did  not  think  this  a 
•rood  excuse,  but  the  court  did  ;  and  Lord  Chaneel- 
Tor  llAKDWicKE  refused  to  charge  her  with  the  thmgs 
lost. 

In  administerins  estates,  executors  and  administrators  sometimes 
pay  some  debts  and  legacies,  tl.inkins  that  tl.e  assets  are  sAitllcient 
for  the  purpose  of  paying  all  the  debts  and  legacies.  They  are 
sometimes  mistaken  on  this  point,  for  unsuspected  debts  will  often 
subsequently  come  to  light.  I'nder  such  circumstances  they  used 
to  be  unable  to  get  any  relief  in  a  court  of  law  But  in  equit  , 
when  they  act  in  good  faith  and  with  caution,  they  are  relieNed, 
<,therwise,  they  would  be  subject  to  an  unjust  loss  from  an  acci- 
dent. 

So.  if  some  of  the  property  were  stolen  or  destroyed  by  Arc  or 
other  accident,  while  in  the  hands  of  an  executor  or  adrainistra. 


^Ml 


ik«i 


^ 


,IFIED. 


EQUITY    CASKS   SIMl'LIFIED. 


03 


.o  .,«  iiofouce  at  law  when  he  was  sued 
iu  equity. 


ALTIES. 


t^IS. 


] 

trix  of  her  luisbaturs 
!ourt  of  Cl)ancery  to 
't^iitee,  she  answered 
liey  had  been  stolen 
)  h.:ul  cntrnsted  them 
did  not  think  this  a 
;  and  Lord  Chancel- 
<re  her  with  the  things 


id  administrators  sometimes 
that  the  assets  are  sutllclent 
l)ts  and  legacies.  Tliey  are 
lususpocted  debts  wlli  often 
z\\  circumstances,  they  used 
jrt  of  law.  But  in  equity, 
.  ciution,  they  are  relieved; 
,11  unjust  loss  from  an  acci- 

olen  or  destroyed  by  fire  or 
an  executor  or  adrainlstra- 


mmM 


94 


EQUITY    CASES    SIMI'LIFIKU. 


MISTAKE. 


MISTAKES  OF  LAW. 


HUNT  V.    UOUS3IAXIEKE. 

[8  Wheat.  17»;    1  Pet.  1.] 

V  creditor  took  tVoiu  his  debtor  ii  power  of  attorney 
to  oxeeute  a  bill  of  ^tde  of  u  ship.  The  creditor  took 
this  kind  of  a  document  l)ecuusc  ho  thoujrht  that  it 
wouhl  he  as  valid  a  security  as  a  mortgage,  and  it 
was  not  stran-e  that  ho  thought  so,  for  he  had  con- 
suited  his  huvvcr  who  had  advised  him  to  this  cflect. 
But  the  hisvvJr  was  wrong.  The  debtor,died,  an.l  his 
de-ith  having  tlie  eiVect  of  revoking  the  power  ot  at- 
torney, the  creditor  found  himself  without  the  security 

he  had  counted  on. 

The  creditor  went  to  the  Court  of  Chancery  lor  re- 
lief from  his  mistake,  but  found  none.  "  Whore  the 
parties,"  said  the  court,  -  upon  deliberation  and  ad- 
vire  reject  one  species  of  security,  and  agree  to  select 
a.u.ther,  under  a  misapprehension  of  the  law  as  to  the 
nature  of  the  security  so  selected,  a  Court  ot  Equity 
will  not,  on  the  iiroun.!  of  such  misapprehension  and 


iriEi>. 


K. 


KQIITV    CASKS    SIMl'MFIKD. 

tlu'iiiMitfidn.fV  of  Mirh  s(H-urity,  in  (•o„s...,iM'm('  ol  :i 
Mil.sequont  ovcMit  not  l\»rcseon,  lu'vlmps.  or  iliougl.t  nt, 
.lin-ct  ii  lunv  security  of  ix  diHeiviit  clmnicter  to  Ih' 
./,vcn,  or  .U'orce  that  to  l>c  .lo.w>  which  the  i.arties  sup- 
•poso.1  wouhl  h:.vc  hcen  ctlVctccl  hy  the  iustnun.-ut 
which  was  titiully  iiL'rcctl  on." 


,.1 W. 


INIEUE. 

lit.  1.] 

)r  a  power  of  attorney 
p.  The  creditor  took 
;c  he  thouirht  that  it 
IS  a  mortgage,  and  it 
t  so,  for  ho  liad  con- 
ned him  to  this  effect. 
10  debtor  died,  and  his 
)king  the  power  ot  at- 
I'if  without  the  security 

rt  of  Cliancery  for  re- 
J  none.  "  Wliore  tlie 
n\  delil)eration  and  ad- 
ity,  and  agree  to  select 
ion  of  the  law  as  to  the 
!ted,  a  Co'irt  of  Equity 
1  misapi)rebension  and 


LA>S»»WNE  V.  I.AXS*»WNE. 

This  case  is  a  lesson  to  people  who,  to  save  expense, 
Irv  to  Hud  out  their  riirhts  without  consulting  a  lawyer. 
There   once  lived    in    Enghuul,    four    brothers,    land 
„wners.     Tlio  second  dies  and  tiio  eldest  and  youngest 
iK.th  claim  his  laud.     They  agree  to  leavetheir  dispute 
to  a  schoolmaster  in  the  neighborhood,  who  alter  cou- 
M.lting  an  "  Every  Man  his  Own  Lawyer,  "  delivers 
hiinsetf  of  a  learned  opinion  to  the  etfcct  that  as  it  is 
;,  maxim  that  lan.l  cannot  ascend,  but  always  d',>sccnds, 
the   younser    brother    is    entitled    to   the    property. 
Vctiu-'on  the  schoolmaster's  advice,  the  eldest  brother, 
the  rt"xl  heir,  executes  a  release  of  his  claims  to  the 
vouu'rest  brother,  but  after  a  while,  finding  out  wliat  a 
tool  he  has  been  he  applies  to  the  Court  ot  Chancery 

"'rhe  Lord  Chancellor  orders  the  release  to  be  set 
aside,  and  the  younger  brother  to  convey  the  property 
to  the  eldest  brother. 


96 


EytlTY   CASKS   SIMl'LiriEU. 


STAPLETON  v.  STAl'I.ETOX. 

[1  Atk.  •>;  2  Wh.  &  Tml.  U\.  ('as.  K.i.  Mf..] 
This  case  is  the  k'u.lin-  authority  fur  these  doctnnea 
of  eciuity. 

( 1  )  That  an  airreemeut  entered  into  upon  u  suppo- 
sition of  a  riizlu; Or  of  a  doubtful  right,  tlun.gli  ,t 
Mterwards  api.ears  that  tlu.  right  was  <.n  the  other 
side  shall  he  l.indin«r,  and  the  right  shall  not  prevail 
a.rainst  the  a-reement  of  the  parties;  for  the  right 
um.st  always  bo  on  one  side  or  the  other,  ami  there- 
fee  the  eomproniise  of  a  doubtful  right  is  a  sufficient 
foundation  for  an  agreement. 

(0  )  That  where  agreements  are  entered  into  to  save 
the  honor  of  a  famil  v,  and  are  reasonable  ones,  a  Court 
of  Eciuity  will,  if  possible,  deevee  a  performanee  ot 
them. 


ClOUDON  V.  GOUDOX. 

[3  Swaust.  too.] 

Because  the  vounirer  brother  disputed  his  elder 
b,c,thcr-s  legitimacy,  the  latter  was  induced  to  enter 
into  a  compromise  with  the  tV.rmer  for  the  settlement  ol 
the  family  estates.  At  the  time  of  the  compromise, 
however,' the  younger  brother  was  aware  ot  a  private 
marriage  that  had  taken  place  between  his  father  and 
„K,ther  and  this  was  not  communicated  to  the  other. 
The  lecitimaey  of  the  elder  brother  by  reason  of  the.r 
private'   nuirringo    was    afterwards    estabbsbed.    and 


IHKU. 
►I.ETON. 

:'lis.  Kq.  Mf..] 

IV  fur  these  doctrines 

(1  into  upon  ii  siippo- 
fnl  vijrlit,  tlioiifili  it 
it  W!is  ou  the  other 
gilt  ishiiU  not  prevail 
irties;  for  tiie  right 
tlio  oilier,  iin«l  there- 
il  right  is  a  sufficient 

re  entered  into  to  save 
isontible  ones,  a  Court 
•CO  a  performance  of 


E«}i:iTY   CASKS    SIMl'MriF.n- 


97 


UDON. 

n-  disputed  his  elder 
■  was  induced  to  enter 
ler  for  the  settlement  of 
lie  of  the  compromise, 
was  aware  of  a  private 
between  his  father  and 
lunicated  to  the  other, 
ther  by  reason  of  their 
rards    established,    and 


aUh..u..h  nineteen  .vars  had  elapse.l,  the  Court  ol 
(Miam-erv  decided  that  the  compromise  must  be 
v,.>cin.led  because  of  the  conceidm.nt  by  the  you.^ircr 
l,rother  of  the  fart  of  the  private  marriage,  and  that  it 
mattered  not  wheth-'r  the  <.missi(m  t(»  disclose  it 
...-Muated  in  design  or  in  an  h.mest  opini.m  ot  the 
invalidity  of  the  ceremony  and  a  want  of  obligation  ..n 
his  part  to  make  the  communication. 

V  mistake  is  ,lH!nc(l.is  "son,o  nnintt-ntlonal  act,  omission  cr 
error,  urisinu'  fnun  it,M.oran.f,  surpris.,-,  iniposUion,  or  misplaml 
conUd-nce."  WLon  the  mistake  arises  from  imposition  or  mis- 
placed  conlUience,  ecjulty  relieves  on  the  ground  o  fraud;  bu 
.,„„ty  also  relieves  when  there  Is  no  fraud -on  the  simple  «n.uu.l 
.,f  n.istake.  Mistakes  are  of  two  kinds,  O)  as  to  matters  of  law, 
(•.')  as  to  matters  of  faet. 

\.  a  .-eneral  rule  ljin..rai.ce  of  the  law  excuses  no  one  -  <!/"-.<"«- 
,in  l.yi^  nrnnnem  «xru«a«- and  this  maxim  is  as  much  observed  ,n 
eonity  as  iu  law.  Therefore,  ordinarily,  as  in  Hunt  ..  Housmau.ee, 
.nprl  an  as^reement  entered  into  in  ;;ood  faith,  thon;,'!,  under  a  rals- 
tikc  of  law,  ^^iill  be  held  valid  and  obli^jatory  upon  the  parties  in 
winltv  as  well  as  in  law.  B.it  there  are  some  exceptions  to  this 
rulcr'aud  e.inity  will  relieve  aiiainsta  mistake  of  law- 

,  |r/,.r.  a  parVi  arts  muler  i.jnomnce  of  a  pUnn  and  xrell-knomi 
'J,pU-  of  Jr,  as  where  the  mistake  is  one  of  title  arising  ro.n 
i.norance"of  a  principle  of  law  of  such  constant  -«<;""«"«^!;;;;;:  " 
supposed  to  be  un.lerstood  by  the  community  a.  large.  Iht  case 
of  Landsdowne  r.  Laudsdowne  given  above  Is,  on  this  exception, 
the  reason  of  which  is,  that  a  mistake  in  such  a  matter  affords  a 
conclusive  presumption  of  ignorance,  Imposition  or  the  like. 

L>.   When  surprise  is  eombinctl  mlh  a  mistake  of  law.    Tyson  v. 
Tvson,  31  Md.  \M. 

But  where  the  mistake  arises  <.n  a  doubtful  point  of  law  a  com- 
promise  falrlv  entered  into  is  encouraged  in  e.puty  and  w.l  be  up- 
e^  And  family  compronUses  especially,as  was  held  in  S^^Me^^^^^^ 
,.  Stapleton,  are  favored  by  courts  of  chancery.  "WhcrcNcr 
doubts'^^  disputes  have  arisen  with  regard  to  the  H.^s  oj  '  - 
ent  members  of  the  same  family,  and  especially  where  those  doubts 
have  reTated  to  a  question  of  legitlu.acy,  and  fair  compromises  have 

7 


C,g  EQl'ITY   CASKS    SIMl'MFIED. 

nllf,  otherwise  the  compromise  wlU  not  be  upbeld. 
II.  An  to  mistakes  of  fact  see  next  cases. 


liMi 


EQUITY   CASES   SIMI'LIKIED. 


99 


ncl  affection,  or  to  save 
9  havo  been  sustained 
grounds  which  would 
the  transaction  had  oc- 
stby,  2  Dr.  &  War.  60:?. 
I  must  be  a  full  and  fair 
j8  which  are  within  the 
iformatlou  be  asked  or 
upheld. 


MISTAKES  OF  FACT. 


BROWN  V.  I^AMPHEAB. 

[as  Vt.  U'52.] 

Miulin  Brown,  of  Voniiont,  convoyed  to  Calvin  Lsim- 
phciir,  11  lot  of  land  on  which  was  ii  spring  from  which 
Brown,  by  means  of  an  aqueduct,  supplied  his   own 
house  with   water.      This   aqueduct   was    of   greater 
value  to  Brown  than  the  price  he  received  for  the  land. 
By  the  mistake  of  Brown,  who  never  intended  to  part 
with  the  use  of  the  water  from  the  spring,  tho  deed  to 
Lanii)hear  contained  no  reservation  of  such  right;  but 
Lanii)hear,  when  he  purchased,  had  no  knowledge  of  tho 
existence  of  the   spring.     Finding   out  what  ho  had 
done.  Brown  filed  a  bill  in  chancery,  and  that  court 
held  that  he  was  entitled  either  to  a  conveyance  from 
Lamphear  of  the  right  to  use  tho  spring  or  to  a  recon- 
veyance of  the  land  oh  repaying   to  Latni)hear   tho 
purchase  price,  and  that  Lamphear  might  elect  which 
ho  would  do.   "  Where  a  mistake  in  a  conveyance,"  said 
the  court,  "  is  of  so  fundamental  a  character  that  the 
minds  of  the  parties  have  never,  in  ftict,  met ;  or  where 
an  unconscionable  advantage  has  been  gained,  by  mere 
mistake  or  misapprehension,  and  there  was  no  gross 
negliirence  on  the  part  of  the  plaintitf,  either  in  tailing 
int'o  The  error,  or  in  not  sooner  claiming  redress,  and 


y 


J 


EijUlTV   CASKS    SIMVMFIEl). 


1(10 

■,,;-,.r,.,.,.,iuils.lis,.,.otl.m,    ,.,  ,„vvo„t  ,ntolc,-.l.lo  ,u- 
justice." 

w- -;•- ^^::::7tx::t:;;:^r^^^ 

,  .,,  i,.  i,nor,u..-.  of  a  materhU  fact  Is  ;';»"•;'  ,,^,.^,,  .,f  f.ua 
...uiiy.  liut  tU-w  relief  is  ^.'-;  «"  ,5^,  ^.  /^J'^f  the  parties,  or 
.,sappoU.stheir.ntentiou..yan.utn.a.    n^    h  -  H   ^^  ^^  ^^^^^^_^_ 

U...t  .itU  .00.1  falU.  -;\P-;-^,  .:j::!;e„ce  of  oithcrparty. 

tions  which  are  iinp'-s^''!  >•>  '''^;  "•'",..  .....ocrnt,  and  thert-  is  lu. 

Therefore,  ^vhcn.  each  party  is  7'  '";  '  ^^  .,,,,  t,,,,,ow,and 
concealment  of  facts  which  the  ..the  J  J-\;  -„,„,,,  ,,,,.„.r 
„o  surprise  or  in.posltlou  exist  .  '«  ;  ;'^  f.H.'.iation  for  ...p.i.a- 
,,,,,,  .^  ..nateria,  is  ^^^^^'^ ^^^^^^^  «'  -'"">•  """- 
bic  interference.     SnUi,  l-M-  ,^., ,,,,;,,.,„,.  m  r^forminii  written 

the  head  of  mistake  Is  ^^^'^^'^^^'^^^^  the  parties,  which, 
doinimcntssoas  to  contorni  to  the  mti.niinn  01  1 

;:::;;;;  InistaUe  or  mnorauce.  has  not  .,een  expressed,  .U.  • 

,.  ^,„«,  ./^Mw.. ...~M  ;..w .a.m.r.iu,,. 

cana^llcd  nmUr  a  inist,ikr. 

::;^2:;ti;":^:c:tr:^sin,frL  accident.    See..c.p.«0. 

,.  E,.m.iU  c"--"^-''^  ^"""rHdiSto'l^t;" 
t,  „.,  doni,t  that  court,  of  e.juity  luvvo  ^^^^'"^.^^  .„,,,  ,„t 
when  they  are  apparent  on  the  face  "^  '  "a  es  oj  wills  the  i«- 
,,  a  due  constrnctlon  of  It.  tern,   ^o  '  "^  ^Lake  .usthe 

tention  will  ^"-:;  ^^  \  ^^Xothe  wise  there  can  be  no  relief; 
apparen   on  the  ^'^^^^  "^J^^^;';'^^,,,,,,,  ^i.e  will,  is  not  admissible  to 

r;rr;:::^-^""- -•'  -.... . .  admissih.  to 

remove  a  latent  ambiguity."    Snell,  Lq.  44J. 


dMB 


MED. 

1,  iiiiil  i\w  paiticH 
ami  (•ri'«l"ity  ^^'''' 
■cut  iutolerabki  in- 


ule,  reintHly  mistakes  of 
tlK  opposite.     ll''re  Hio 

iiKuli*  iindt-r  a  iiilxtakc, 
i.lable  and  rellfval)lf  i" 
.i;re  tin;  mistake  of  fafi, 
itruct  of  the  parties,  or 
„r,  wlu're  It  is  liiconsis- 

violaiiou  of  tl'P  oliliKa- 
(mscleuco  of  I'itlR'V party, 
miornit,  ami  there  is  no 
,■  iiasari;;littoknow,aiHl 
,keoriunorance,\vi>etlier 
nofoiiiulttlionfore<ini'"' 
risdictlon  of  e'l'ill.v  >""''''" 
,lly  in  reforminir  written 
ion  of  tlie  parties,  wliii;!!, 
en  expressed,  vi/.. : 

!/!./  vrUUn  c«ntrai-tK. 

s  hai-f  hri'ii  delivered  up  "<■ 

enitinn   of  poirrrs   thvwih 
8s  are  applicable  as  incases 

lent.    See  ante,  p.  «0. 

In  regard  to  these  there 
urisdiction  to  correct  them 
16  will,  or  may  he  made  out 
n  all  cases  of  wills  tho  in- 
,t  then  the  mistake  must  l)e 

.ise  there  can  be  no  relief: 
he  will,  Is  not  admissible  to 
Ithough  it  is  admissible  to 
1.  443. 


K...I  rrv  TASKS  >*!Mrr.iiii.i>.  •'" 

in  com-ius, .lu.re  are  eases  in  whieh  e.,ul.y  will  ,..  relieve 

against  u  mistake  of  fact.    Tluy  are  ;  - 

1.  Where  the  e.,ui.ios  are  cp.al.  .■.,/..  .-l-'ity  wHl  -'»'  P-'  '••"^•' 
„«aiu>.l  a '-»„  ./W.    p.MThas.  r  for  value. 

'.'.  Wliere  llie  parties  are  volunteers. 

;i.  Where  the  defe.t  is  declared  fatal  by  Htatutc. 


1 


102 


KyllTY    CASKS    SlMI'lll  l»;i). 


IVUAl'  1>. 


CO 


STJUcrs  JN  HEsriiAiyr   <>r    MMtitiAaK. 


3IAI)1M>X   V.  3IAI>I)<>X. 

[11  (iriitt.  MU.] 
.lol.n  Ma.Mox,  u  nuMuLer  <.f  th«  S.H-iety  of  Kn.nd., 
»,v    l.is    will    jrav.  a  U'->u-y  t..  his  ni.-.    Ann  Mana 
.\,„,i„.  her  sinj^U,   lilV,  a.Ml    fon-vcv   it  \m-    co.ulu.-t 
«houia  Ik.  onU.rly,  an.l  sl.o  rcuain  a  nuMU her  ..t  Hu 
Sociotv  ..f  Kricn.ls.-'      Now.  it  wa.  a  rulo  o(   tho  son- 
,,v  that  a  nu'n.l..r  wi.o  n.a.rifd  an    outsulc  person 
tlKMohy   f...-lcitoa  his  nu'inhiTshii..     This  was   rather 
h,,.a  on  Ann  Maria,  for  whonnhc  arrived  at  a  marnage- 
uhlo  a.'o  there  were  hut  half  a  do/n,  UM.narne<l  Qnakeis 
'in  thar  part  of  Virginia.     And,  to  n.aUe  things  worse, 
tl.ere  was  one  Tluunas  Tiller,  who  was  not  a  t  nend. 
but  who  was  very  sweet  ..n  A.n.  Maria.     Tho  student 
,viU  not  1.C    ^urprised  to  hear  that  she  very  soon  beeanic 
Mrs    Tiller,  and  that,  when  the  other  relations  heard 
of  it',  thev  hronght  a  suit  to  obtain  her  legacy,  ou  tho 
.,ound  that  it  was  tbrfeite.l   bv  the  tern.s  of  the  w.ll. 
'  But  the  eourt   he.l  that   Mrs.  T.,  ».V  Ann  Mana, 
.hould  keep  tho  legacy.     Tho  condition  was  vo.d,  they 
said,  for  two  reus.,  s.     In  th.>  first  place,  .t  .nfrniged 
the  perfect,  absolute  and  un«iualitied  freedo.u  ot  relig- 


EgriTV   CASI'.W    MMII  IIIKI). 


loa 


r.i». 


;/••     M  Milt  I  Ad  K. 


OX. 

iociety  of  Fr'uMuls, 
nifcf,  Aim  Miiria, 
■ci-   if  lu'i-   coiuluct 
a  iiKMulicr  of  \\w 
a  rule  of  tlio  soci- 
an     outside  pcM'sou 
This  was   rather 
i-ivcd  at  a  inarriago- 
iiiiniarritHl  Quakors 
luaUe  things  worse, 
I  was  not  a  Friend, 
[aria.     The  stiulent 
ic  very  soon  heoame 
her  relations  heard 
1  her  U-gacy,  on  the 
le  terms  of  the  will. 
T.,  nee  Ann  Maria, 
ditiou  was  void,  they 
(t  plaee,  ".t  infringed 
ied  freedom  of  relig- 


ious opinion  whi.-h  iheeivilin^lilnlions  of  Virginia  se- 
cured to  all  who  ilwelt  under  tlieni. 

\nd  in  the  s.nond  place,  the  .•..ndhi.-u  was  v<..d,  he- 
cause  the  n.arriage  ..f  the  legatee  t..any  one  who  was 
„„l  a  tiuaUer  would  lead   to   her  exp.dsion  from  the 
Society  of  Friends  and  a  cons«M|iient  forfeiture  <.t  the 
Ic.Micv      *'  Conditions  in  restraii,'  of  marriagi-  annexe.l 
t.r  gifts    an.l  legacies,"   8ai<l  Lkk,  .1.,   "  ar.'  alh.wed 
wluMi  they  are  reasonable  in   themselves,  and  d.)   not 
undulv  re"striet  a  just  and  proper  freedom  <.f  eh..i.e. 
Hut  where  a  conditicm  is  in  restraint  of  marriage  gen- 
erally, it  is  deemed  to  ho  contrary  to  pul)lie  policy'  "^ 
war  with  sound  morality,  and  directly  violative  ot  the 
true  economy  of   social   and   dom.'stic    lite.     Hence, 
such  a  coiulition  will  he  held  utterly  void." 


101 


EQUITY   CASKS   SlMl'l.IFlKD. 


liAJidAlXS    M'lTJI  IlEinH. 


CHESTERFIELD  v.  JAXSSEX. 

[•_>  Vi'.s.  r->.-i;    1  Wli.  cv  Tii.l.  L.l.  ('as.  Eq.  50:.'. J 

Sir  Abraliam  .liuissoii  was  a  luoiicy-loiuler,  and 
Sponcfr  was  a  laki-,  i-iosi-d  for  inoufV,  l»ii<  with  gi 
i-vpectations  iVoin  his  giaiulmothor,  the  Diuhesi 
Mailboroujrh.  Tlie  (-Id  lady  was  seve.ity-ei-ht  y^ 
old,  while  the  giandsoM  was  only  thirty.  This  1h 
the  state  of  atlairs  Mr.  Si.eiu-or  borrowed  to.OOi 
.lansseii,  pro.uisin.ir  to  l.ay  £10,000  if  he  survived 
DiH-hess,  and  nothing  if  she  survived  him.  He 
vived  her,  and  aft.«r  her  death  gave  the  money-le] 
a  bond  for  £10,000,  and  paid  a  part  of  it.  :Mr.  S 
cer  afterwards  die.l  and  his  executrix  tiled  a  bi 
ehancery  to  be  relieved  from  paying  the  bond  bee- 
it  was  usurious  and  unconscional)!*;. 

But  the  court,  without  deciding  whether  relief  w 
have  been  given  against  the  original  transaction, 
that  no  relief  could  now  be  given,  :Mr.  Spencer 
ins,  by  his  acts  a<*ter  his  grandmother's  death,  ra 
the  transaction. 

lu  the  jjreat  case  of  CMiesterlield  r.  Janssen,  Lord  Char 
llAUKWiiKK  divided  fraud  into  lour  classes:  — 

1 .  Fraud  arlslnc!  from  the  facts  and  circumstances  of  impo 

2.  Fraud  arising  from  the  Intrinsic  matter  of  the  bargain 

:!.  Fraud  arising  from  the  circumstances  and  condition 

parties. 

4.  Fraud  affecting  third  persons  not  parties  to  the  agreer 


^m 


SIMI'MFIKU. 


KgilTY    CASKS    SIMI'I.II'IKl). 


10.") 


nil  llElRii. 

L>  V.  JAXSSEX. 

■|ul.  1,(1.  Cas.  Eq.  .VJL'.J 

s  IV  iiKHU'V-loiuk'r,  !uul  Mr. 
I  for  inoiiey,  Itut  with  groat 
luhuother,  the  Diuhess  of 
Iv  was  seventy-eight  years 
IS  only  thirty.     This  heing 
eufor  l)()rr()wetl   £.'),()00  of 
£10,000  if  he  survived  the 
e  survived    him.     He   sur- 
vtli  gave  the  money-lender 
id  a  part  of  it.     Mr.  Spen- 
lis  executrix  tiled  a  hill  in 
m  paying  the  l)ond  because 
icionahh;. 

iciding  whether  relief  would 
e  oriirinal  transaction,  held 
l)e  given,  ]Mr.  Spencer  hav- 
randmother's  death,  ratified 

•Held  r.  .Jaussen,  Lord  Chancellor 
our  classes :  — 

ts  and  circumstances  of  imposition, 
rinsic  matter  of  the  bargain  Itself, 
iciimstances  and  condition  of  the 

ons  not  parties  to  the  agreement. 


1  Tlio  llrst  of  these  divisions  embraces  what  is  known  as  actual 
faud,  Or'  others  what  is  called  constructive  fraud.  .\.Jual  fraud 
il  deim.d  as  'somelhin-  said,  d.,  v<e  or  oudtted  with  t  he  .lesign  of  ptr- 
..clrating  what  the  party  must  have  known  to  l.e  a  i-ositive  fraud. 
Snell  Kq.  4  Jit.  .\ctual  frau<l  arises  (a)  where  there  has  been  a  mis- 
representation, or,  as  the  lawyers  say,  mi<J<'»li'>  /"'-''  ""^'  '''^  ''''''''''' 
there  has  been  a  conceaUnenl  or  ,,,./.y./-(-.s,sK,  v,'ri.  A  ndsrepresenta- 
tion  amounts  to  fraud  as  to  which  e-iuity  will  relieve  when  it  is  of 
s.,me  n.alerial  ff.ct  as  to  which  there  is  a  c<.nllden(;e  reposed  in 
,lH.  party  making  it,  and  the  other  party  is  misled  to  his  preju.l.ce. 
Au.l  a  concealment  is  a  ground  for  e.iuitable  relief  OMly  where  the 
party  was  under  a  legal  obligation  to  disclose. 

The  last  three  of    Lord   ll.uti.wu  kk's  divisions  of  fraud   arc 
known  as  constructive  frau.ls.     "  Hy  constructive  frau.ls  are  meant 
such  acts  or  contracts  as,  although  not  originating  in  any  actual 
design  or  contrivance  to  perpetrate  a  positive  fraud  or  injury  upon 
other  persons,  are  yet,  by  their  len.lency  to  deceive  or  nuslead  other 
persons,  or  to  violate  p.-vate  or  public  coulldence,  or  to  impair  or 
injure  the  public  interests,  deemed  cpially  reprehensible  with  posi- 
tive fraud,  and  therefore  are  prohibited  by  law  as  being  acta  and 
contracts  done  vmh,  naim,,:^     Hnell,  K<,.  -Kit.     Chesterlleld  r.  .lans- 
s..n  illustrates  one  of  the  cases  of  fraud  of  this  kind.     For,  although 
in  tliat  case  no  relief  was  given  because  of  conlirmatlon  by  Mr. 
Spencer  of  the  transaction,  yet  the  particular  subject  of  bargains 
with  expectant  heirs  was  there  much  considered.    As  to  these,  the 
rule  in  equity  is  to  set  them  aside,  unless  the  purchaser  can  show 
that  he  paid  full  consideration,  or  that  the  barsain,  being  made 
known  to  those  to  whose  estate  the  expectant  yyas  hoping  to  suc- 
ceed, was  approved  of  by  them.     In  a  more  recent  case  (Nevill  t'. 
Snelling,  1.5  Ch.  Dlv.  OTl)),  the  plaintiff  was  the  youngest  son  of  a 
maniuis,  who  was  a  large  landed  proprietor,  but  he  (the  plaintltt) 
had  no  property  or  expectations  except  such  as  might  be  founded  on 
tlifi  position  of  his  father.    The  defendant  had  lent  him  money 
without  any  tliought  of  repayment  by  the  borr.nver  from  his  own 
].crsonal  resources,  but  on  the  credit  of  his  general  expectations, 
and  in  the  hope  of  extorting  payment  from  the  father  to  avoid  the 
exposure  attendant  on  the  son's  being  made  a  bankrupt.     Relief 
was  given  by  the  court,  Mr.  Justice  Denman  holding  that  the  priu- 
cii.le  on  which  ciuily  has  granted  relief   from  an  unconscionable 
l)argaln  entered  into  witii  an  expectant  heir  or  reversioner  for  the 
loan  of  money,  applied  equally  to  the  case  of  such  a  transaction  as 
this,  though  the  plaintiff  was  not  an  expectant  in  the  strict  sense  of 
the  term. 


100 


EQUITY    CASES    SIMI'IJIMED. 


Other  cases  of  constructive  frauds  of  this  class  are :  — 
(it.)  Marriase  l)rokaKe  contracts.     See  as  to  these  the  rule  of 
law  as  laid  clown  in  Lawson  Ld.  Cas.  Sirnplilled,  Vol.  I.  p.  103. 

(6.)  Secret  a-jreements  in  fraud  of  marriage. 

(c.)  Rewards  ft)r  intluencin<;  another  person  in  making  a  will. 

(d.)  Contracts  in  restraint  of  marriage.  Maddox  v.  Maddox  Is 
on  tills  point.  It  must  bo  noted  that  If  the  condition  is  only  in  par- 
tial restraint  of  marriage,  and  is  reasonable,  it  will  be  upheld.  A 
condition  against  the  seconil  marriage  of  a  widow  Is  held  to  be 
reasonable. 

(<'.)  Contracts  in  restraint  of  trade.  See  Mitchel  v.  Iteynokls, 
I  Lawson  Ld.  Cas.  Simpiitled,  101. 

(/.)  Contracts  for  the  sale  of  office  and  the  like.  See  Oulick  «. 
Ward,  1  Lawson  Ld.  Cas.  Sirnplilled,  !S7. 

As  to  frauds  under  the  third  and  fourth  classes  see  the  next  cases. 


IKI>. 


EQUITY   CASES   SIMI'LIFIED. 


107 


class  are :  — 

s  to  these  the  rule  of 
led,  Vol.  I.  p.  loa. 

ijie. 

on  In  making  a  will. 

Madclox  V.  Maclclox  is 
onilition  is  only  in  par- 
it  will  be  upheld.     A 
I  widow  is  held  to  be 

Mitchel  V.  Iteynokls, 

he  like.    See  Gulick  «. 

sses  see  the  next  cases. 


BARGAINS  BETWEEN  PERSONS  IN  FIDUCIARY 
RELATION. 


HUGUENIN  V.  BASELEY. 

[U  Ves.  i'7a;  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  547.] 
The  Rev.  Mr.  Biiseley  so  etrectually  <:iuiied  the  con- 
rideucc  of  Mrs.  HujriH'iiui,  who  was  then  ii  rich  widow, 
tliiit  she  took  her  iirtairs  out  of  her  solicitor's  hands 
;ind  phiccd  them  in  the  clergyman's.     The  letter,  w.tli 
hor  sanction  and  at  her  request,  undertook  the  man- 
agement of  her  property  ;  and  she  afterwards  executed 
srvoluntary  settlement  of  some  valuahte  property  lu 
favor  of  him  and  his  ftunily.     Mrs.  IIuj,nienin  having 
subsequently  married,  a  suit  was  brought  by  her  and 
lior  husband  for  the  purpi.se  of  setting  aside  the  set- 
tlement. 

The  court  ordered  that  the  settlement  should  be  set 
aside,  as  obtained  by  undue  influence  and  abused  confi- 
dence in  the  defendant  as  an  agent  undertaking  the 
management  of  her  affairs. 

The  above  case  forms  an  instance  of  a  constructive  fraud,  and 
proceeds  upon  the  ground  of  the  contl.lentlal  relation  existing  be- 
tween the  parties;  for  It  is  a  rule,  that  when  any  such  confidence 
exists,  and  the  party  in  whom  it  is  reposed  makes  use  of  »t  to  obtam 
an  advantage  to  himself  at  the  expense  of  the  party  confiding,  he 
will  never  be  allowed  to  retain  any  such  advantage,  however  unim- 
peachable such  transaction  would  have  been  If  no  such  confidence 
hud  existed.  This  is  upon  the  general  principles  of  public  pol  cy . 
\ud  gifts  from  child  t..  parent;  from  ward  to  guardian;  from  client 
lo  attorney;  from  cestui  7«^  trust  to  trustee,  all  come  withlu  this 
rule. 


20)15  EQIITY  (ASKS  snu'LiriKi). 

As  to  frau.Ls  upon  tl.ir.l  i.arlies,  tl.oy  may  bu  divided  into  three 
classes,  viz. :  — 

1.  Frauds  upon  creditors.     Sec  Sexton  v.  Wheaton,  post,  p.  100. 

2.  Frauds  upon  marital  rights.     See  Countess  of  Strathmore  r. 
Howes,  pnxt,  p.  111. 

3.  Frauds  i.pon  powers.     See  Aleyn  r.  Belchier,  post,  p.  113  . 


mm 


LiriKi). 

nay  bu  divided  iulo  three 

II  V.  WhoiUoii,  post,  p.  100. 
:;ouutess  of  Stratlimore  r. 

Belchler,  post,  p.  H^  ■ 


Eyuiiv  CAsi:s  siMrLiiiiiU. 


100 


FRAUDS  UPON  CREDITORS. 


SEXTOX  V.  WHEATON. 

[nVVheiU.  L'i".»;   1  Am.  Ld.  ('as.  1.] 

lo^oi.li  Wl.oaton,  wlu.  \uu\  lor  several  years  heUl  a 
,..ov.i-mneut,  (.Hies  owned  a  ho..^o  ami  lot  in  tlu-  .-.t y  ot 
Wa.hin.'tou,  wh.ro  lu-  livo.l.      I..  March,  1H07,  ho  von- 
v.vo.l  it  to  his  wife,  and  'in    l-SOlt  went   into  a  nier- 
.,,„tile  husinoss.     But  in  this  lin.  he  was  n..t  success- 
,.,,.   ,•,,    ,vithin    two   years    he    tailed,    an<l    a    lot    ot 
creditors  uere  lun.tin-  tor  assets  to  li(,uidate  the.r  de- 
,„,,h1s       Not  lindin-  enou-h  of  .L.seph's  property  to 
satisfy  them,  the  creditors  tiled  a  hill  in  equity  to  have 
,h.  cmn-evance  f.  the  wife  set  aside,  and  the  property 
•mplicl  t.;  the  pavn.ent  of  the  husl.and's  debts,  basin- 
"tl'iir  claim  on  a  well   known  statute  (  13  Eliz     ch.  ;;), 
which  declares  that  all  conveyances  (except  hrn,a  lul" 
transfers  for  a  good  considerati.,n),  nnnle  w.th  n.ten 
,„,,i,„,,r,  delay,  and  defraud  creditors,  shall  be  y.».d 
is  a-ainst  the  parties  intended  to  be  u.jured. 

lint  the  court  decided  that  they  o.dy  ayo.ded  c.»n- 
veyances  as  to  those  ^vho  were  creditors  at  the  tin>e  ot 
their  execution,  an.l  that  a  yoluntary  conyeyance  ,s 
..,o,l  a-ainst  those  who  becon.e  creditors  attcrwards 
mdess  it  is  made  with  the  fraudulent  intent  to  det.^it 
their  claims.  Here  there  was  no  such  intent,  for  Mr. 
Wheatou  could  hardly  be  supposed  to  have  these  sub- 


110 


EQUITY   CASES   SIMPLIFIED. 


sequent  croditors  in  his  iniud  when  he  made  the  con- 
veyance to  his  wife. 

Of  course,  if  a  man  is  about  to  embarlc  in  a  hazardous  business, 
and  puts  his  property  in  his  wife's  hands  to  be  safe  in  the  event  of 
his  being  unsuccessful,  this  will  be  a  sufficient  indication  of  fraud, 
and  the  conveyance  may  be  set  aside. 


liMi 


PLIFIED. 

vhen  he  made  the  con- 

irk  in  a  hazardous  business, 
(Is  to  be  safe  In  the  event  of 
ufflclent  iniUcatlon  of  fraud, 


KQUITV   CASES   SIMPLIFIED. 


FRAUDS  UPON  MARITAL  RIGHTS. 


Ill 


COUNTESS  OF  STRATHMORE  v.  BOWES. 

[1  Ves.  22;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  40ti.] 

I  am  the  Countess  of  Strathmore, 
I  married  Bowes  and  rued  it  sore 
Yet  spoiled  his  uttermost  intent. 

By  cozenage  and  false  championry, 
Hlra  seemed  he  had  my  wealth  In  fee, 

And  it  was  all  in  .settlement. 
Great  words  lie  spalte  in  this  despite 
Of  fraud  and  his  marital  right, 

lu  vanity  his  words  were  spent. 

Liuly  Strathmore  was  engaged  to  Mr.  Grey,  and  a 
>hort  time  before  the  event  was  to  come  off  she,  with 
Ills  approbation,  conveyed  her  property  to  trustees,  for 
lier' Vep^iinite  use.     But  Lady  Strathmore  was  incon- 
stant, for  hearing  that  a  Mr.  B«we8  had  f.njht  a  Wuel 
„n  her  account,  she  straightway  consented  to  marry 
liiin.     Bowes  found  out  that  he  was  not  entitled  to  any 
(,f  her  property,  and  asked  to  have  the  conveyance  she 
U-m\  made  to  the  trustees  set  aside.     Tlie  court  hehl 
lliat  a  conveyance  by  a  wife,  whatsoever  may  be  the 
<  iicumstances,  and  even  the  moment  before  the  mar- 
.•ia<^e,  \s  prima  facie  good,  and  becomes  bad  only  upon 
tl,.r  imputation  of  fraud,  and  that  if  a  woman  in  the 
,„urse  of  a  treaty  of  marriage  with  her,  makes,  w^h- 
out  notice  to  the  intended   husband,  a  conveyance  of 
luiy  part  of  her  property,  it  will  be  set  aside  because 
iitlected  with  I  hat  fraud. 


iMMMi 


1 


112 


KV»  ITY    CASKS    SIMIM.Il'IKU. 


Rut  this  (-use,  tlio  court  said,  was. lillVront.  the  sottlc- 
moiit,  indcca,  lu'iujr  witli  tiic  saucti<»u  of  tlic  then 
intoiHlrd  liu^l)aud,  and  so  the  settlement  here  was  es- 
tahlisht'd, 

\  s.-cna  c:)nveyancf  1)V  :i  woiinn  i)en(lln!i  a  inarria-u  e.maaiL"- 
meut  is  a  fraud  on  tlic  ImshaiulN  marital  rights;  ultliougii  l>e  di.i  n..t 
liiiDW  slu;  liad  any  l)n>iu;rty. 

Tlier.'  app.'ars  f.  l)o  one  exception  to  tliu  general  rule  laid  down 
in  Countess  of  Strallunore  r.  Howes  and  tluit  is  in  tl.e  case  of  lli. 
prevL.us  seduction  l.v  a  man  of  his  intended  wife,  for  it  has  been 
held  that,  as  the  husband  has,  l)y  his  contluet  l)efore  the  marriiiire, 
put  it  out  of  tiie  wife's  power  to  make  any  stipulation  forsettle- 
„H.nt  of  her  pr..pertv,  retirement  being  impossible  on  her  part,  a 
secret  seltiem.MU  made  by  her  shall  not  be  set  aside.     Taylor  v. 

I'ugh,  1  Hare,  cos  ■  .    ,  ,„ 

It  was  also  fornieriv  supposed  that  another  exception  existed  in 
the  case  of  a  fair  settlement  by  a  widow  upon  her  children  l)y  a 
former  marriau'c,  l)Ut  tlie  autliorities  do  not  ai.pear  to  warrant  this, 
and  it  cannot  tlierefore  be  consideivd  as  an  exception,  for  "it  is 
conceived  that  a  iirovision  for  children  would  not  render  a  settle- 
ment valid  which  without  it  would  be  fraudulent;  for  althougii,  in 
the  execution  of  a  settlement,  so  far  as  it  makes  provision  for  lier 
cidldren,  a  wife  may  perform  a  moral  duty  towards  her  cliildren, 
she  has  no  right  to  act  fraudulently  towards  her  husband;  and  she 
can  in  sudi  circumstances  only  reconcile  all  her  moral  duties, 
by  making  a  proper  settlement  on  her  children  with  the  knowledge 
of  her  intended  husl>and."  1  Wh.  &  Tud.  Ld.Cas.  E(i.  458;  Inder- 
luaur  Ld.Cas.  Eq.  50. 


dMi 


l.ll'IF.I). 

i.siliUV'nMit,  thf  sottlc- 
•iiiuction  of  tlic  then 
ttleiuent  here  was  cs- 


EQUITY   CASES   SIMPLiriED. 


FRAUDS  ON  POWERS. 


IKl 


ndiiiil  a  inarriatfc  eiiKagi!- 
rlglils;  although  he  diil  mil 

the  (jt'tHTiil  rule  laid  down 
d  that  is  In  tin.'  case  of  tln' 
iided  wife,  for  It  has  been 
ndiii't  before  the  niarriuire. 
;  any  stipulation  for  settlc- 
;  impossible  on  her  part,  ii 
ot  be  set  aside.     Taylor  v. 

notlier  exceiitioii  existed  in 
)W  ui)()n  her  children  by  a 

not  apiiear  to  warrant  this, 
as  an  exception,  for  "it  i- 

woiild  not  render  a  settU- 
raiidulent;  for  althonj;h,  in 
*  it  makes  pri)vision  for  licr 
duty  towards  her  children, 
rards  her  husband;  and  she 
ncile  all  her  moral  duties, 
-hildren  with  the  knowledge 
id.  Ld.Cas.  Eij.  458;  luder- 


AL.EYN  V.    BEL.CHIER. 

[1  Eden,  132;  1  Wh.  &  Tud.  Ld.Cas.  E(i.377.] 
From  his  uncle,  Edwurd  Aleyii  received  a  devise  of 
property  tvith  power  to  make  a  jointure  on  any  woman 
he  should  marry.     Edwtird  married  and  executed  the 
power  in  favor  of  his  wife,  but  with  an  tigrecnient  that 
she  should  only  receive  a  part  as  an  annuity  tor  her 
,.wn  bencHt,  and  thtit  the  residue  should  be  applied  to 
the  payment  of  the  husband's  debts.     The  court  held 
that  this  was  a  frtiud  upon  the  power,  and  its  execu- 
tion  was  set  aside,  excei)t  so  far  as  related  to  the  an- 
niiity,  the  bill  containing  a  submission  to  pay  it,  and 
„uly  seeking  relief  against  the  other  objects  of  the  ap- 
pointment. 

"No  point  is  better  established,"  said  the  court, 
"  than  that  a  person  having  a  power  m.ist  execute  it, 
honajide  for  the  end  designed  ;  otherwise  it  is  corrupt 
•ind  void.  The  power  here  was  intended  tor  a  jointure, 
,„,t  to  pay  the  husband's  debts.  *  *  *  If  a  father  htis 
a  l.ower  to  appoint  amongst  children,  and  agrees  with 
one  of  them  for  a  sum  of  money  to  appoint  to  him,  such 
appointment  would  be  void." 

A  power,  as  here  used,  is  aa  authority  enabling  a  person  through 
t,>e  tnedTum  of  the  SUtute  of  Uses  to  dispose  of  an  Interest  vested 
in  himself  or  some  third  person.  Thus  land  may  ^e  conveyed  o 
X.  in  trust  for  such  uses  as  B.  should  appoint,  or  in  trust  for  suca 
person  or  persons  generally  as  B.  should  appoint,  or  i°  t'««  /""^ 
Lch  members  of  a  particular  class -as  children,  grandchildren, 

8 


m  EOrlTY   CASES    SIMI'MKIKD. 

,.,  _.aK  n.  Hl,..ul(»  apiH.mt.     UN  rljil.t  In  su.h  .a.o  ««    c«IU-cl  a 

w..r      1  W„    F.i  •'.-.;      l..,wfrsl.ave  been  divided  Into  ll.n-..kln.l.s. 

^  :    "^P,"  I.^  in  .roHs,  una  coUatenU.     A  power  «]>P^.';';- ^j^ 

where   he  person  to  whonUhe  power  Is  given  huHun  Interest  In  th 

esta  !   oM  it  is  annexed;  a  power  In  grcH  is  where  a  person 

'mv    .  an     nterest  in    the    land   ha«  power  to  create  an  estate 

'Z^1,Z    onlv  to  take  effect  after  the  determination  o   his  own 

tere"       Boll,  powers  appendant  and  in  gross  may  bo  .lefeasance.l 

e  led      I'owers  collateral  are  those  «iven  to  persons  takln«  no 

tere       n  the  land,  and  arc  in  the  nature  of  trnats  so  that  they 

clTbe  extinguished  or  destroyed,  and  -1"'^^  -^  «'ve  ass^  - 

ance  tn  case  of  the  non-execution  of  such  powerB      See  Tud.  LU. 

'^'' Powers  may  also  be  divided  into  general  and  special  powers,  the 
fomerbeirwhere  there  Is  a  general  power  to  appoint  In  favor  of 
:,7person:and  the  latter  where  the  appointment  Is  Mmlted  to  a 
particular  clUss;  and  with  regard  to  this  olvlsloa  there  Is  this  Im- 

portlnt  dlfferen'cc  a,  regards  the  -•-«''|-\'i«'j:-:";:^;*,;S7 
Lowers  having  no  tendency  or  perpetuity,  the  time  of  >^s^"  t-  '" 
rkoned    not  from  the  creation,  but  from  the  execution  o,  the 
power,     ut  special  powers  leaving  such  a  tendency,  the  time  o 
vesUnirnn.  from  the  instrument  creating  the  power.    Indennaur  s 

''it':  wf;?  settled  that  a  power  must  be  executed  '-naM^^l^^^^ 
end  designed,  otherwise  It  is  void.  Aleyn  v  Bf  ^'^J""  ^^l;" 
ml  the  power  to  raise  a  marriage  portion  for  the  wife  being  ex- 
erli^ed  for  the  purpose  of  paying  the  appointer,  it  wasafraud  upon 
the  power  and  equity  sot  the  transacUon  aside. 


IKIKD. 

n  su<h  i"i>t<'  '«   cnlUnl  a 

1  divided  Into  lliri'«kin<l.x, 

A  power  appfmlant  is 

von  huHun  Interust  In  tlif 

I  gronH  Is  where  a  person 
wer  to  create  nn  ostutt- 
letermhmtlon  of  his  own 
Itross  may  be  defcasaneed 
;iven  to  persons  taking  n<> 
re  of  trusts,  so  that  they 
id  ciiulty  will  Klve  assist- 
h  powers      See  Tud.  Ld. 

»1  and  special  powers,  tlie 
ft-er  to  appoint  In  favor  of 
polntment  Is  llndted  to  a 
divisloD  there  is  this  Im- 
.inst  perpetuities;  general 
Ity,  the  time  of  vesting  is 
•om  tlie  execution  of  the 

II  a  tendency,  the  time  of 
K  the  power.    Indermaur's 

e  executed  bona  fid*'  for  tlie 
leyn  v.  Bclchler  illustrates 
rtlon  for  the  wife  beinR  er- 
pointer,  it  was  a  fraud  upon 
1  aside. 


KQlllTY   CASKH   SlMrUFIED. 


M0NA  FIBE  runCIIASERS. 


lU) 


■ASSET  V.  N»8W»RTHY. 

[Cas.Temp.  Finch,  102;  ••  Wh.  &  Tud.  Ld.  Cas.  Kq.  !•] 
A  l.iU  was  Hlod  l.v  an  l.eii-ut-hiw  ugainst  a  person 
,  ,,i,ni,.g  as  puichasor  fn,.n  a  d  'iH.'o  nntler  the  w.l  ol 
|,is  unccator  to  discover  a  rcv<.cation  ..t  tlic  will.  1  In* 
.lotV-ndant  plcnulcl  that,  lio  was  a  pun  l.a.s.r  lor  valua- 
hle  consideration  bona  fide,  withont  notio,  o(  any  rov- 

oeation.  ,  i     .    .. 

The  court  held  that  this  plea  was  good,  and  upon 

proof  of  it  the  bill  was  dismissed. 

This  casH  was  decided  upon  the  well  known  rule  that  equity  will 
This  ^*«^  ;;°  "  '     ,nst  a  bona  fide  purchaser  who  had  no 

never  gives  Its  assistance  ag    nsi  j  ^^,^^  ^^  ^,,„ 

""Tabll  ra^r^Ie       he  'l^.TZ ^n^^^  the  law  will  pre- 
;:;;r'fo^^^^^^^^  ca!  t^e  h^r  at  law  had  unequal  equity  with  the 
u  chkser  irom  the  devisee.    But,  as  the  latter  had  become  pos- 
sessed of  the  legal  estate,  his  title  was  the  best. 


■n 


IIG 


KQUITY    CAMl.H    MMI'MUKl). 


SPKCIFIC    PERF^RMATiCE. 


NOT  GENERALLY  I)  EC  HE  ED  OF  CHATTELS. 


CUDDKK  V.  UUTTEU. 

[5  Vm.  Ab.  53b,  pi.  •-'!  ;  1  Wh.  &  Tuil.  \A.  Cas.   Eq.  78C.] 

Cudclot)  »)()u<<ht  tVom  Ruttcr  a  liirgc  uinouiit  of  South 
Sen   stock  to  l)c  ddiverocl     on  the  20th  of  the  next 
NovciuIkt.       lU'lorc    tho     tnno     of    delivery     Sr     'i 
Sea  stock  went  up  very  high,  and  on  the  20th  ol 
voinl»cr,  Kutter  did  not  tender  the  stock,  but  otu-i^.. 
to  pay  tlie  ditVerenoe.     Cuddeo  wonl  ,i  not  hear  of  this, 
})ut,  tlicreupon  Hied  a  bill  in  ehancery  asking  tho  court 
to  compel  Ruttcr  to  transfer  the  stock  as  ho  had  agreed. 
The  court,   however,  decided  against  him,   tho  Lord 
Chancellor  saying  that  it  was  like  the  case  of  a  bargain 
for  corn  to  bJ  delivered  ui)on  a  day  certain  at  such  a 
price,  and  the  corn  is  not  delivered  according  to  the 
contract,  the  buyer  shall  not,  by  a  bill  in  equity,  compel 
the  seller  to  a  specific  performance  of  this  agreement, 
but  the  buyer  is  left  to  his  remedy  at  law  for  breach  ol 
the  a'^recment  to  recover  damages;    i.e.,  tho  dilfer- 


Mi 


liuki). 


KWriTY    CASKS   SIMIM.IFIKI). 


11 


cMiro  Lotwoen  tho  i)ricc  agieeil  ..n  by  tlio  purlieu,  and 
the  priio  of  corn  upon  tlu)  lUiirkct  day. 
And  HO  Cuddoo  hud  to  bo  content  with  the  ditfor- 

cnco. 


^RMAT^CE. 


D  OF  CHATTELS. 


TTEll. 

Ud.  L(l.  Cas.    Eq.  780.] 

large  amount  of  Soutli 
the  20th  of  tho  next 
of    delivery     S«     'i 
md  on  the  2()th  ol 
tho  stock,  but  otitic., 
vould  not  hear  of  this, 
mcery  asking  tho  court 
stock  as  ho  had  agreed, 
jiainst  him,   tho  Lord 
io  the  case  of  a  bargain 
I  day  certain  at  such  a 
ivered  according  to  the 
a  bill  in  equity,  compel 
incc  of  this  agreement, 
idy  at  law  for  breach  of 
iiajres  ;    i.e.,  tho  differ- 


mam 


118 


EQUITY   CA8E8    BIMI'LIFIEW. 


ARTICLES    OF  SPECIAL  VALUE. 


PUSEY  V.  PUSEY. 

^Vern.  173;  1  Wh.  &Tucl.  Ld.  Cas.   Eq.  820.] 

The  title  to  the  Manor  of  Piisey,  in  England,  was 
by  a  horn  which  had  been  given  to  the  first  owne 
King  Cannte,  and  which  bore  this  inscription  : — 

Kyng  Knowd  geve  Wyllyara  Pewse 
This  horn  to  hold  by  thy  lond. 

The  plaintiff  wlio  was  heir  to  the  property  fi 
bill  asking  that  the  defendant  be  ordered  to  deli 
up  ;  and  the  court  so  ordered. 


DUKE  OF  SOMERSET  v.  C00K80N. 

[3  P.  Wtns.  3S9:  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  821.] 

The  Duke  of  Somerset  owned  an  old  altar-piece 
of  silver,  remarkable  for  a  Greek  inscription  and 
cation  to  Hercules.  It  had  been  sold  by  one  wh 
got  possession  of  it,  to  Cookson,  a  goldsmith. 

The  Duke  prayed  the  court  to  order  Cookson 

liver  it  up,  which  was  done. 

At  common  law  a  party  who  agrees  to  do  a  certain  thing 
be  compelled  to  do  it ;  all  the  court  can  do  Is  to  award  dami 
the  breach.  Courts  of  equity,  however,  wftcre  damages  an 
adequate  recompense  will  require  him  to  carry  out  his  contra, 
other  words,  will  decree  speclttc  performance  of  the  agreer 


i   SIMI'LIFIEW. 


EQUITY   CASES   SIMPLIFIED. 


119 


WECJAL  VALUE. 


V,  PUSEY. 

Tud.  Ld.  Cas.   Eq.  820.] 

Piisey,  in  England,  was  held 
iriven  to  the  first  owners  by 
ore  this  inscription  : — 

!ve  Wyllyara  Pewse 
Id  by  thy  lond. 

heir  to  the  property  filed  a 
lant  be  ordered  to  deliver  it 
sred. 


K8ET  V.  C00K80N. 

.  i  Tud.  Ld.  Cas.  Eq.821.] 

)wned  an  old  altar-piece  made 

I  Greek  inscription  and  dedi- 

iid  been  sold  by  one  who  had 

jokson,  a  goldsmith. 

ourt  to  order  Cookson  to  de- 

le. 

agrees  to  do  a  certain  thing  cannot 
ourt  can  do  is  to  award  damages  for 
however,  where  damages  are  not  an 
3  l»lm  to  carry  out  his  contract,  or  !& 
ic  performance  of  the  agreement. 


,a,lo,>  tot  the  breach  ol  «n  «sre«n.e.t  °  <"="';  ^;,;^„' „,  ,^„,„  ,„    . 
„o„  from  the  «.U«ner.    Tl>ete  tore,  the jar.dUUono     q 

,o  cases  .vhere  a  compensation  in  dama  ^^^,^.000,  « 

punc  and  satisfactory  remedy        f  ^^''P;  '^;';;;,i  i^  performance 
Id.  5:27.    The  cases  where  eciuUy  mil  detret  speciuc  i 

are :  —  , 

,     mer.  tU  chatUl  U  of  .uc/.  a  nature  that  Us  '«-;«»-;  ''~ 
pel^/o.  inaamayes.    Pusey  ;■•  ^^i:^Z:^^r^y 

r"^s  ;^r:;r:r tr  na^^;t^r::  Ze .....  or  that 

horn,  the  p.«  "^-P'^^Y    ;       ^  .  ,  ^^^  ^ive  two-pence  beyond  the 
,„  thl.  count,,  did  no.  .«ord  .»,  '«™*-    "^  ""'i^^    M,^ 

;:  :f.7h°«  ttJClcohee.  deeded  that  yo-.»ot  >.„.  . 

that  '•-«''P''-;, « '  j'|;;j':S.  :».;  .'ri^'h  .f.«er  ,.  ran- 
chooies  to  apply  for  It  W  '"'",.'„  ,„.„,,,  .,nwav  »har«8  are 
way  .hare,  of  a  particular  <'""'P"°»;,, """*""  .^  ^o,  .1„.58 
„ited  m  n»n,ber,  ."d  "hlch  ..  u>-  ^      *    ^i^  p„.  L 

r;ror:ii,irc^»-  p--"- «»-  -'"■  «•■ '"""-" 


120  EQUITY    CASES    SIMrMFIEI). 

convenient  to  l.hn  by  reason,  of  its  vicinity,  or  an  owner  of  land 
cZrTZm^  timber  contracting  to  «ell  It  In  order  to  clear  his  land, 
and  I  sumesthat  In  both  these  cases  equity  would  decree  a  spec,  c 
^erfona'ce.  Buxton  u.  Lister.  3  Atk.  385.  Every  case  depemh. 
on  the  particular  circumstances,  the  test  being,  are  aama.es  a  com- 
plete  remedy? 

2    Where  a  fiduciary  relation  exists  betrceen  the  parties     Here 
equity  to  prevent  an  abuse  of  power,  and  by  virtue  of  its  jurisdic 
'  tion  over  trustees,  will  nearly  always  interfere. 


EQUITY   CASES   SIMPLIFIED. 


121 


Ity,  or  an  owner  of  land 
In  order  to  clear  his  land, 
Ity  would  decree  a  speciilc 
}86.  Every  case  depends 
being,  arc  damages  a  coin- 

')etween  the  parties.  Here 
I  by  virtue  of  its  jurlsdic- 
erfere. 


CONTRACTS  RELATING   TO  REAL  PROPERTY. 


SETON  V.  SliADE. 

[7  Ves.  SJC5;  2  WU.  &  Tud.  Ld.  Cas.  Eq.  513.] 

The  plaiiititf  agreed  to  sell  certain  real  estate  to  de- 
fendant, and  it  was  agreed  that  he  should  make  a  good 
title  ill  two  months.     Defendant  afterwards  gave  him 
a  notice  that  if  he  did  not  do  so  he  should  insist  on  the 
return  of  his  deposit  with   interest.     The   plaintiff', 
li„wever,  only  delivered  his  abstract  of  title  a  few  days 
before  the  expiration  of  the  two  months,  which  the 
•iofendant  then  received  and  kept  without  objection. 
The  court  held  that  the  vendee,  under  the  circum- 
stances, was  not  entitled  to  insist  on  time  as  of  the 
(ssence  of  the  contract,  and  so  specific  performance 
was  decreed. 


L,ESTER  V.  FOXCROFT. 

[1  Colles  P.  C.  108;  1  Wh.  &  Tud.  Ld.  Cas.  Eq.  7C8.] 
By  parol  merely,  Lester  agreed  that  he  would  pull 
ilown  certain  houses  on  Foxcroft's  land,  and  budd 
other  new  ones  in  their  place  ;  and  in  consideration  of 
tliis  Foxcroft,  also  by  parol,  agreed  that  he  would  give 
Lester  a  long  lease  of  the  property.  Lester  went  to 
work,  pulled  down  the  houses  and  built  some  of  the 


122 


KQl'ITY    CASKS   fmMI'MFlKI). 


otlicis,  hut  whtMi  he  applied  lor  the  leube  Fuxcroi't  re- 
fused to  give  it ;  and  when  Lester  threatened io  go  to 
law  ahout  it,  referred  him  to  the  Statute  of  Frauds, 
whieh  rciiuires  leases  of  lands  to  be  in  writing  to  he 

binding. 

But  Lester,  like  a  wise  nnm,  went  to  the  Court  of 
Chancery  and  asked  the  si)ecitic  performance  of  the 
contract  on  Foxcroft's  part.  And  what  is  more,  he 
got  it,  notwithstanding  the  Statute  of  Frauds,  on  the 
•rround  of  his  own  part  performance  of  the  parol 
agreement. 


\VIA^A.M  V.  HEARX. 

[7  Ves.  221 ;  2  Wh.  &  Tud.  Lil.  Cas.  Eq.  484.] 

The  plaintirt'  liled  a  bill  for  the  specific  performance 
of  a  written  agreement.  This  agreement  when  pro- 
duced provided  for  a  rent  of  $73. !•  per  annum  ;  but 
the  plaintiff  said  that  this  was  a  mistalie,  it  should 
only  have  been  $00,  "and  1  want,"  he  said,  "the 
court  to  order  the  defendant  to  execute  me  a  lease  ac- 
cording to  the  agreement  with  this  variation  :  that  the 
rent  l)c  I'iO," 

liut  the  court  refusoti,  on  the  ground  that,  though  a 
defendant  resisting  a  specific  performance  may  go  into 
parol  evidence  to  show  that  by  fraud  or  mistake  t\w 
written  agreement  does  not  express  the  real  terms,  the 
plaintiff  cannot  do  so  for  the  purpose  of  obtaining  a 
specific  performance  with  a  variation. 

We  have  seen  that  as  to  chattels,  courts  of  etjuity  do  not  usually 
decree  speclllc  performance  —  damages  being,  as  a  rule,  a  sufBcient 
recompense.    Hut  tn  contracts  respecting  land  11  is  not  so.    The 


rtM 


,!F1KI). 

iic  lease  Foxcrol't  re- 

r  thrcate Medio  go  to 

Statute  of  Frauds, 

be  in  writing  to  be 

ent  to  the  Court  of 
performance  of  the 
nd  what  is  more,  he 
to  of  Frauds,  on  the 
•mance  of   the  parol 


EQUITY    CASK«   PIMI'MKIED. 


1SJ3 


BARN. 

1.  Cas.  En.  484.] 

!  specific  performance 
agreement  when  pro- 
J.li  per  annum  ;  but 
a  mistake,  it  should 
ant,"  he  said,  "  the 
ixocute  me  a  lease  ac- 
ii.s  variation  :  that  the 

jround  that,  though  a 

formance  may  go  into 

'  fraud  or  mistake  tlu? 

•ess  the  real  terms,  the 

lurpose  of  obtaining  a 

ation. 

irts  of  equity  do  not  usually 
being,  as  a  rule,  a  sufilcionl 
Ing  land  It  Is  not  so.    The 


l.,calltv,  soil,  or  character  of  the  laud  give.  It  generally    a  peculiar' 
,u     u  the  ;ye  of  an  intending  purchaser,  .o  that  it  canno  be  re^ 
rc:d  by  other  land  of  the  same  precise  value,  b"t -t  ^^  ^«  t^^^^ 
ame  local  conveniences,  and  therefore  a  ««™P«°''f  ^'"J"    ""'^'' 
^uld  not  be  adequate  relief.    It  would  not  attain  the  object  de- 
mand it  would  generally  frustrate  the  plans  of  the  purchaser 
rlCfore  the  ju'rlsdlctlon  of  courts  of  --"'^J  ^J^^^^^^^^^^^^^ 
norforniance  is.  in  cases  of  contracts  respecting  lands,  uuhersa  ly 
;;;at~M^K.reas  lu  cases  of  chattels  It  is  limited  to  special  cir- 

Soton  ,..  Slado  shows  how  f.r  equity  will  ««  "  ^^^^ 
agreements  concerning  land.  At  common  law  one  party  to  a  con 
u;ct  cannot  conn-.ain  of  a  breach  by  the  other,  ,mles    he  can  show 

„isown  compliance  with  its  terms  In  ^^^'^^  P^^^T^^'^^^rlX^^^^ 
Slade  shows  that,  though  the  terms  may  not  have  been  str.ct  y  com 
Plied  with,  yet  specitlc  performance  may  be  decreed.    But  In  sue 

ieUe  court  will  take  care  to  make  proper  compensation.    And 
I,  i^pr    clple  of  decreeing  specHlc  performance  with  compensation 
app  led  whe.e  the  vendor  seeks  specific  performance  and  ha    no 
xS  the  interest  he  contracted  to  sell,  but  the  difference  i   not  . 
Xi'al ;  but  a  purchaser  cannot  be  forced  to  accept  ^^^^l^^ 
f.-rent  tenure  to  what  he  contracted  to  buy,  for  tlu«  is  not  constu 
(■red  a  matter  for  compensation. 

Lester  r.  Foxcroft  shows  that,  in  spite  of  the  Statute  ««  » ■•^»«« 
a-quiring  agreements  as  to  lands  to  be  In  wrlti^J,  ^^^'"'\'^\l'f'' 
oislder  that  after  a  per-son  has  been  allowed  to  do  acts  in  pa 
:  ftmance.  It  would  be  a  fraud  on  the  part  of  the  ^^^ 
allowed  him  to  do  such  acts  not  to  perform  his  P^'-^  "«/»»«  ^«"'*;: 
A^to  be  a  part  performance  must  be  exclusively  referable  to  tic 
agreement,  and  such  acts  as  payment  of  purchase-money,  delivery 
of  abstract,  and  the  like,  are  n.e  su.llclent  part  performance;  but 

'^^S:rr r^E:rrirwhich  specie  performance  of 
a  pll  contract  will  be  decreed;  and  they  are  (I)  where  .  Is  flly 
set  forth  by  the  plaintiff  in  his  bill,  and  admitted  by  t  -  ^^fem lant 
1.,  Uls  answer,  and  he  does  not  Insist  on  the  «^  "^^^^^^j;'*^*;",  .V, 
and  (2)  where  the  agreement  was  Intended  ^^  ^e  n^duced  lu^ 
writing  according  to  the  statute,  but  was  prevented  by  the  fraud 

of  one  of  the  parties.  nUintiff 

With  regard  to  the  decision  In  Woollam  r.  Hearn,  that  a  plalnUH 

cannot  get'speclflc  performance  of  --^--^-'^^^^7' 7J  ^f,;: 
though  good  as  a  general  rule,  yet  It  must  be  noted  that  there  arc 


124 


EQUITY   CASES   SIMPLIFIED. 


three  cases  in  which  a  plaintiff  may  so  obtain  specific  performance 
with  a  subsequent  parol  variation,  and  they  are  of  a  similar  nature 
to  the  three  cases  above  stated  In  which  specific  performance  will 
be  decreed  of  an  original  parol  contract,  viz.:  (1)  after  such  acts 
of  part  performance  of  the  parol  variation;  (2)  where  defendant 
sets  up  the  parol  variation,  and  plaintiff  seeks  specific  performance 
with  It;  and  (3)  where  It  has  not  been  put  into  writing  because  of 
fraud.    Indermaur  Ld.  Cas.  Eq.  87. 


LIFIED. 


i;giIITV  CASES  RIMl'LIl-lEU. 


12') 


(btain  specific  performance 
hey  are  of  a  similar  nature 
h  speclflc  performance  will 
t,  viz.:  (1)  after  such  acts 
tlon;  (2)  where  defendant 
seeks  speclflc  performance 
lut  Into  writing  because  of 


WHEN  SPECIFIC  PERFORMANCE  NOT 
DECREED. 


DODSON  V.   SWAN. 

[2  W.  Va.  511.] 

Mr.  Dodson,  finding  that   he  was  indicted  by  the 
.rrand  jury  of  Marshall  County,  West  Virginia,  was  in 
°  hurry  to  leave  the  State,  and  was  advised  by  his 
friend  Swan  to  stand  not  on  the  order  of  his  going,  if 
lie  did  not  wish  to  be  locked  up.     To  enable  him  to 
escape  money  was  necessary,  and  Swan,  like  a  good 
friend,  otfered  to  bny  his  farm.     Dodson  agreed;  a 
(ontract  was  drawn  up,  and  Swan  paid  him  a  part  ot 
the    purchase-money   for    travelling    expenses.     The 
storm  blew  over,  Dodson  came  back,  but  when  Swan 
tendered  him  the  balance  of  the  purchase-money,  in  ac- 
cordance wit!;  the  agreement,  he  refused  t.)  convey  the 
property,  and  Swan  filed  a  bill  in  chancery  to  compel 

him.  1    1  .»      -1 

But  he  did  not  succeed.  -  It  is  well  settled,  saul 
the  court,  "  that  where  a  contract  grows  out  ot  an 
illecral  or  immoral  act,  a  court  of  justice  will  not  lend 
its  aid  to  enforce  it.  It  is  both  an  illegal  and  an  im- 
moral act  to  aid  or  assist  a  felon  to  avoid  or  escape 
from  prosecution  or  punishment." 

The  above  ca«c  Is  given  as  an  Illustration  of  the  cases  in  which  - 
whether  the  contract  be  personal  or  real -a  court  of  equity - 
without  taking  lute  consideration  whether  damages  are  a  sufllcltnt 
relief  or  not -will  not  decree  speclflc  performance.  These  arc:  - 
1.  An  agreement  arising  out  of  or  providing  for  an  illegal  or  im- 
moral  act. 


/y 


12<; 


EQUITY    CASEh   SIMri.lFIKl). 


^! 


2.  .t«  agri'nneiit  mthoiU  awMdemlion.    Thus  an   nfjrpoinent  to 
make  a  gift  ciiunot,  us  a  rule,  be  specillcally  enforced. 

•t  A  contract  vhirh  the  court  has  no  mram  to  enforce.  Thus  n 
sluiier  agrees  to  siu«  at  u  certain  theatre,  but  when  the  time  couu> 
refuses  to  carry  out  her  contract.  A  court  of  equity  will  not  decree 
its  Mpecillc  performance,  because  It  cannot  compel  her  to  sin;:. 
/  But  it  may  accomplish  this  result  hullrectly,  by  ic-stralHlng  her 
om  singiu!,'  any  where  else.    See  Lumley  r.  Wagner,  1  Lawson  s 

Ld.  Cas.  Simp.  2<!«. 

#ther  contracts  of  this  class  are  contracts  to  transfer  tlie  gooti 
will  of  a  business,  to  build  and  repair  premises,  and  revocable  con- 
tracls. 

4  Contracts  wanting  in  mutuality.  An  Infant  cannot  maintain  u 
suit  f«r  sfecillc  performance,  because  a  court  of  equity  cannot 
compel  a  speciUc  performance  against  him. 


iM 


in.iFiKi). 


EglJlTY    CASKS    SIMl-UriKI). 


1.  Thus  iin  afjrocment  tn 
cally  enforced. 
I  meant  to  enforce.  Thus  a 
c,  but  when  the  time  comi  .>• 
urt  of  equity  will  not  deorei 
annot  compel  her  to  sin;: 
llrectly,  by  ic-stralaing  her 
nley  r.  WfiKner,  1  Lawson's 

ntracts  to  transfer  the  good 
)remlse8,  and  revocable  con- 
In  Infant  cannot  maintain  a 
a  a  court  of  equity  cannot 
blm. 


JURISDICTION  OF  EC^UITY-  •  EQUITY  ACTS  IN 
PEKSONAM.  " 


PBNN  V.  I^ORD  BALTIMORE. 

[I  Ves.  444 :  2  Wh.  &  Tud.  Ld.  Cas.  Eq.  02.1.] 

The  niimeH  of  the  parties  t(.  this  suit  arc    familiar 
enough  to  the  American  student,  for  one  gave  his  name 
,„  a  great  State,  the  other  to  a  great  city.     They  had 
o.ch  by  .'rants  from  the  King  of  Enghmd  obtamcd 
larcre  tracts  of  hmd  in  America,  nota})ly  the  then  prov- 
inces of  Pennsylvania  and  Baltintore.     They  had  en- 
tered   into  articles  settling  the    boundaries  ot   these 
provinces,  and  the  defendant,  not  being  willing  to  exe- 
cute his  part.  Mr.  Penn  (both  he  and  Lord  Baltimore 
hein<rat  the  time  m  England)  sought  a  specific  per- 
f.nnrance  of  the  ailicles  by  an  English  court  ot  equity. 
Lord  Baltimore  objected  that  the  property  was  out  ot 
the  jurisdiction  of  the  court. 

But  the  court  decided  that  Penn  was  entitled  to 
specific  performance  of  the  articles,  for  though  the 
court  had  no  original  jurisdiction  on  the  direct  ques- 
tion of  the  original  right  of  the  boundaries,  the  prop- 
irty  being  abroad,  yet  that  did  not  at  all  matter,  as 
the  suit  was  founded  on  the  articles,  and  the  court 
acted  i»  personam. 

The  above  case  forms  a  good  illustration  of  the  well-knovvn 
maxim  or  principle,  "Equity  acts  in  pe«onam;"  a  maxim  which 
Teed  shows  the' great  difference  in  the  jurisdiction  of  eqalty  to 


188 


EQUITY    CASKS   StMl'MFIKD. 


that  of  law;  thus  at  law  the  only  renie.ly  on  a  breach  of  contract 
w„«  an  acton  for  damage,;  hut  in  equity,  as  the  court  acted.. 
personam,  the  party  could  always  be  compelled  to  do  t '«  very  » 
Lin  this  case,  although  the  property  was  abroad,  and  therefor- 
the  court  really  lu  respect  «f  the  property  had  no  ,urlsdlctlon  yc, 
the  parties  belnK  within  Its  jurisdiction,  the  court  was  able  t. 
awarcUheprope?  remedy,  acting  not  at  all  on  the  property,  bu: 
directly  on  the  persons. 


!*■ 


ie«ly  on  ii  breach  of  contract 
qulty,  as  the  court  acted  in 
ompelled  to  do  the  very  act 

wat*  abroad,  and,  therefore, 
lerty  had  n<>  jurisdiction,  yet 
tlon,  the    court  wan  able  to 

at  all  ou  the  property,  bui 


EQtlfV    CASKS   KIMI'I.IKIKO. 


liJ'J 


INJUNCTIONS. 


ENJOINIXa    PHOVEEDINGfi    AT   LAW. 


MAUINE  INSURANCE  CO.  v.  HODGSON. 

[7  Cranch,  .13'-'.] 
The  schooner  Sophia  was  iiHiued  tor  a  voya^re  i„ 
,1,..  Marine  Insnmnco  Con.pany  for  rs,0()0  ;  and  bcno 
.,,,lur..a  on  the  voyage,  the  owner,  l.rought  an  a.-t.on 
at  htwon  the  policy  tmd  recovered  jndg.nent  lor  the 
«s  ()()()      The  insurance  company  now  asiiotJ  a  Unin 
ot'E.iditv  to  enjoin  the  collection  of  this  judgment  on 
,l,e  .n-ound  that  Uie  owners  hac^  heen  guilty  ot  nusrep- 
,.scntation  in  obtaining  the  insn.:->c  -.     Tt  was  argt.ed 
hv  their  counsel  that  a  court  of  equity  had  junsd.c- 
,ioa  to  enjoin  proceedings  in  courts  of  htw       I  he  court 
,l....ided  that  it  had.   "  Without  atte.nptuig,     sa.d  Ch.et 
Justice  Marshall,  "  to  draw  any  precise  lino  to  wluch 
Courts  of  Equity  will  advance,  and  which  they  cannot 
pass,  in  restraining  parties  fn.m  availing  thentselv.^  o 
Lhnncnts  obtained  at  law,  it  may  safely  be  sa.d  that 
anWact  which  clearly  proves  it  to  be  against  conscience 
lo'execute  a  judgment  and  of  which  the  injured  party 
,  ould  not  have  availed  himself  in  a  court  ot  law,  or  ot 
.l.ich  he  might  have  availed  Imnself  at  law,  but  was 


i;.,)  F.QtlTV   CASKS   BIMl'MKIEn. 

,,,,,ai.vlVaua..ra.oidcMU,  unmix..!  willMmytJu.lt 

,.„i)liniti.mt(.  aCoH'-t  (.fCliniHTiy. 

"••;:'   ^\,...,U,.HuHui;'  sui.HlK.ju.lgo,'' a. nay  w.h 

,,,„,,.UV,vl.olai.l.lownnsa,c..-n.lnn.tlmtud.- 

^:    cannot  1.  sot  up  in  equity  ^vhichlms  boon  hi 

;^,  ,,,.,,,  ..UlH.ugint  maybe  the  opunouot 

,  UuU  tl.c  .U.lenc.  c.u.ht  to  have  boon  .u«tanu.  a^ 
,,,v"  As  the  .-..n.p'my  ^vrro  n..t  prevent.,  f.n 
!;;:;Uin.Ml..  <MVn..e   (the   false  v.^^^^^^^^^^^ 

law  .uit,  the  i.uu"<'t'""^^"^  •■*''"''"'■ 

court,  or  .uw  e..uW,  r.are.s  i"i-U^;;'-^>::;:;«  '^^TZ!; 

„,i.  ...justice  C.....C  tl  e  )»'-^'*r^^  '^"  !'  ,i^  Jj,  by  a  co,.rt  of  equity 
An  mjuncti....  in  <U-U"e.l  to  be  '';;'^'     r"*-'^^/.,^  reHt..lni.,«  him 

,ro.u  the  co,..mlssio.i  or  continuance  of  I'^mory  'T^o  forme 
A„  ...junction  Is  either  -f-'^cThlna  th  a"  ^eBtralnH  bin 
compels  the  defendant  ^;' ^« -^^^^.^^  '  j  n,uch  used,  for  th. 
from  .loins  so...ethlns.  ,  »"^  ^'^^Z  '"T^J  ^ut  In  a  ronndabout  va; 

'"^i'Zlin,  arc  8.«.r.„,-  1.«o„  .or  U.re«  purpo.o.,  .... : 
I.  To  restrain  proceedings  at  law. 
„.  To  enforce  a  contnict  or  to  forbid  a  breach  thereof. 

.     ^  ■  ^    ..  M-rantt  independent  of  contract. 
HI.  To  prevent  a  tort.i.fl.,  a  \vr«ng,  .""^k 

J.       ^.  in,n     The  rlKht  of  a  Court  of  Cha 
I.   To  restrain  proceeding,  „t  f^^^Jl'^Jl  ^.^,  ,,  fl,,^  stoutly , 

eery  to  restrain  P--«*    '  "^^^^^^^^^  ,i,elr  dignity.    E. 

.lstedbythecommonlaw,"dgesas^.«P        8^^  ^^^    ^, 

of  Oxford's  Case,  1  Ch.  Rep.   1 .    -  "^ "  ^^^  ,^,v  court,  I 

,„.    B..t  equity  does  not  atte.np^^^^^^^^^^^  ^^,  .„ 

acting  in  p*r«(m«,..e.,joins  the  parf.e«f^^^^^^  ^  ^^^^  _ 

diction  of  equity,  as  stated  by  Chief  Justice  Ma. 


mm 


MKIF.n. 

iiiuixi'<bvill>  imy  t'luilt 
iijronts,  will  ju'^tiry  an 

ry . 

0  jiulL'o,  "  it  mny  with 
ircncnil  ruUi  that  u  (1<- 
■  which  has  bci-n  fuHv 
ho  the  opinion  <»•'  ti>'' 
huvi!  Ik'(Mi  t*u»taiiu'«l  at 
)  not  pruventcti  fntnt 
,  ,  t'lMX'sontation )  intla- 

H8t'«l. 

.after  they  were  conunltterl, 
eir  commlNslon.    To  Mipply 
e()ultyto  l>Miuan  Injunction. 
Issued  by  u  court  of  equity 
some  act,  or  reHtalnln«  him 
uf   some  act.     Blsp.  K«l.  :Wli. 
,r  prohibitory.    The  former 
Dg;  the  latter  restralnH  hliu 
er  l8  not  much  used,  for  the 
ct,  but  In  a  roundabout  way 
:)Us.    Thus  If  A.  held  papers 
)urt,  the  writ  instead  of  com- 
s,  would  order  A.  not  to  keep 

)r  three  purposeH,  viz. ; 


E<^riTY    CASES   KIMPLIIMKI). 


131 


,.:,.e,  Is  now  well  Nettled.  The  cases  la  which  equity  will  not  stay 
I  roceedlngH  at  law  are  — 

1.  Where  the  matter  Is  criminal. 

'J  Where' the  ground  of  defense  was  equally  available  at  law. 
spe  Marine  Insurance  Co.  v.  Hogdson,  »upra. 


aid  a  breach  thereof. 

5,  Independent  of  contract. 

The  right  of  a  Court  of  Chan- 
w  courts  was  ill  first  stoutly  re- 

impalrlng  their  dignity.  Earl 
IVh.  &Tud.  Ld.  Cas.  Eq.  COl, 
to  dictate  to  the  law  court,  but 
.,  from  proceeding.  Thi.  nrls 
Justice  Mai    iiAi'    a  the  :v>h 


132 


EQUITY   CASES    felMl'LlFIED. 


INJUNCTIONS    TO     RESTRAIN    VIOLATION 
CONTRACTS. 


STEWARD  V.  AVINTERS. 

.[4Sandt.  Ch.  587.] 

Mr    Steward  was  the  owacr  of   the  store  N^ 

Willium  Street,  New  York  City.     He  leased  .to 

ters  for  two  years,  the  lease  providing  that  the 

was  to  be  occupied  for  th.  reguhvr  dry  goods  jo 

business,  and  for  no  other  kind  of  business.     W 

went  into  possession  and  iinmet--ately  began  to 

an  auction  mart  of  it.     Over  the  door  he  suspe, 

red  fla-,  and  advertisements  of  the  dady  auctio, 

to  take  place  at  No.  18  appeared  every  morn 

th6  newspapers.     Now,  Mr.  Steward  had  r- 1  ir 

that  covenant  in  the  lease  for  nothing;  he   h 

objection   to    ...ion  sales    in   his  budding,   « 

,,dlcd  n,>on  '.v.uters   to   stop  them      But  the 

would  do  nothing  of  the  kind,  and  Mr.  Stewa 

obliged  to  apply  to  the  Court  of  Chancery 

matter. 


mm 


SIMI'LIFIED. 


EQUITY   CASES   SIMl'UFIEl). 


i;;;i 


, TRAIN    VIOLATION    OF 
1ACTS. 


V.  AVINTERS. 


Ch.  587.] 


owner  of   the  store  No.  18 
City.     He  leased  it  to  Wiii- 
ise  providing  that  the  etor^ 
3  regular  dry  goods  jobbing 
I-  kin'd  of  business.     Winters 
I  immeuately  began  to  make 
)ver  the  door  he  suspended  a 
nts  of  the  daily  auction  sales 
,  appeared  every  morning  in 
VIr.  Steward  had  r'  t  inserted 
ase  for  nothing;  he   had  an 
les    in   his  buildrng,   and   he 
stop  them.     But  the  latter 
B  kind,  and  Mr.  Steward  was 
e  Court  of  Chancery  in  the 


The  court  ordered  Winters  to  stop  the  auct.on  st  c  ^ 
:.  Where  the  parties,"  -tid  the  V  ce-Chancellc.     '     y 
.„  express  stii.ulation  have  themselves  deternn.dtu 
,part.cular  trade  or  business  conducted  by  the  one 
,.  11  be  injurious  or  offensive  to  tl^^^l^^^,  and    heu    . 
a  continuing  breach  of   the  ^tip"  «t,o„  by    h     on  ' 
winch  this  court  can  perceive  may  be  h.ghly  dot nn    n- 
tal  to  the  other,  although,  on  the  facts  pre««f  f  ^\' '^^ 
not  clear  that  there  is  a  serious  injury,  and  it  is  man.- 
fost  that  the  extent  of  ttio  injury  is  difficult  to  be  ascer- 
lained  or  measured  in  damages,  it  is  the  duty  ot  th. 
court  by  injunction  to  restrain  further  m  r actum s  o 
,1,0   covenant,   therel>y  preventing   a   multipbc-.ty   o 
petty  suits  at  law,  and,  at  the  same  time,  protecting 
the  rights  of  the  complainant." 

The   jurisdiction  of  equity  to  enjoin  the  ^-[^^^'^J'^^^.l 
founded  upon  very  good  reasons.    In  ™any  cases  ^    «ag-  a^  »« 
redress  to  the  sufferer  at  all.    But,  in  addition  to  this,  .he  in3"ry 
!™lly  a  continuing  one,  and  the  sufferer  though  1-  -'^J*  ^^;- 
obtained  damages  for  the  past  Injury  would  --\^\^''J;^IZZ 
Uis  future  discomfort,  and  thus  woula  be  put  *«  f  ^J^P^;^"* 
brin-iug  a  suit  once  a  month  or  once  a  year,  as  the  case  may  be 
Tie;  ?ore  equity  Intervenes,  and  to  P«vent  Irreparable  mlschie 
which  could  not  be  compensated  by  a  money  ^"f f--  •;;\;^j;P. 
press  interminable  litigation,  orders  the  party  to  cease  his  In.url 

(HIS  acts. 

The  jurisdiction  of  equity  to  forbid  a  violation  «'  «'«  ^™  ^^^ 
a  contract,  is  coextensive  v.lth  Its  power  to  «  ^^^  ^^J^.^'^.''^. 
formance.  Often,  where  the  court  cannot  decree  s^,eciilc  per  o  ™ 
ance  on  account  of  Us  inability  to  ^«ry  he  d*>cree  into  effect,  u 
will  grant  an  injunction  to  restrain  tU.  doing  of  ^^^'^I'-TllZce 
that  agreed  on,  and  thus  Indirectly  c<  mpel  a  specie  performance 
T^r/th:  singer's  case.  She  could  -t  be  compelled  to  smg  a 
the  plaintiff's  theatre,  but  the  court  restrained  her  from  singing 


EgUirV  CASES  SIMPLIFIED. 


LIFIED. 

was  attained.    Lumley  v. 

,  a  thing.    Here  equity  can 
.  Winters,  above. 


EgUlTY   CASES   SIMI'IJEIED. 


135 


RES TRAINII'G  NUISANCES. 

ST.  HELEN'S  SMELTING  CO.  v.  TIPPING. 

[11  H.  L.  Gas.  642;  L.  R.  1  Ch.  CO.] 
Mr    Tipping,  of  Lancashire,  manifested  his  objec- 
tions to  smoke  in  a  very  practical  way.     Havmg  pur- 
chased a  house  and  grounds  situated  w.thni  a  short 
distance  of  the  works  of  a  copper  smelting  company, 
he  found  very  soon  that  to  live  in  that  region  was  s.m- 
plv  out  of  the  question.     From  the  tall  chimneys  o 
the  works  smoke  and  noxious  vapors  issued  n.ght  and 
day  ;  it  injured  his  trees  and  shrubbery  ;  made  his  cat- 
tie  sick,  and  rendered  his  own  existence  intolerable. 
Mr   Tipping  therefore  resorted  to  an  action  for  daiii- 
a..c's.     The   company   proved  that  the  whole   ne.gh- 
horhood  was    studded   with   manufactories   and    tall 
chimneys  ;  that  there  were  some  alkali  works  close  to 
their  own,  whose  smoke  was  quite  as  injurious  as  tlie.rs, 
and  that  the  smoke  of  both  sometimes  united,  making 
it  impossible  to  say  to  which  of  the  two  any  particular 
injnry  was  attributable.     They  also  relied  on  the    act 
that  their  works  had  existed  before    the   defendant 
h(n.<.ht  his  property.     Nevertheless,  Mr.  Tipping  rc- 
rovered  £361  damages,  and    although  the    company 
carried  the  cas3  all  the  way  to  the  House  ot  Lords,  all 
the  judges  thought  him  cntitM  to  the  verdict. 

-  Ill  matters  of  this  descn-aon,"  said  Lord  Clian- 
roVlor  Westbury,  "  it  appears  to  me  that  it  is  a  very 


i|0; 


irable  thing  to  mark  the  difference  between  an  action 


i.ie 


EQIITV   CASKS   SIMPLIFIED. 


,,n)u-ht  for  a  nuisu.ue  ui>oii   the   ground    tluit    tlie 
Hllcrod  luiisance  produces  inuteri.il  injury  to  the  prop- 
erty,  and  an  action  brought  for  a  nuisance  on  the 
.rrc.und  that  the  thing  alleged  to  be  a  nuisance  .s  pr..- 
ductive  of  sensible  personal  discomfort.     With  regard 
to  the  latter,  namely,  the  personal  inconvenience  and 
interference  with  one's  enjoyment,  one's  qu.et,  one  s 
personal  freedom,  anything  that  disc(unposes  or  mjur.- 
,,usly  affects  the   senses  ..r  the  nerves,  whether  that 
may  or  mav  not  be  denominated  a  nuisance,  must  un- 
dcubtedlv  depend  greatly  on  the  circumstances  of  the 
the  placeVhere  the  thing  complained  of  actual  y  occu.-s 
If  a  man  lives  in  a  town,  it  is  necessary  that  he  should 
subject  himself  to  the  consequences  of  those  opera- 
tions of  trade  which  may  bo  carried  on  m  his  .mme- 
.liate  locality,  which  are  actually  necessary  tor  tracle 
and  commerce,  and  also  tor  the  enjoyment  of  property 
,„d  f<n-  the  benefit  of  the  inhabitants  ot  the  town  and 
■.f  the  public  at  large.     If  a  man  lives  in  a  stree 
where  there  are  numerous  shops,  and  a  shop  is  opened 
next  door  to  him,  which  is  carried  on  in  a  tair  and 
,   reasonable  wav,  he  has  no  ground  for  complaint,  be- 
cause    to  himself  individually  there  may  anse  much 
discomfort  from  the   trade   carried  on  in   that  shop. 
But  when  an  occupation  is  carried  on  by  o"M;«^««"  J" 
the  neighborhood  of  another,  and  the  resu  t  ot  that 
trade,  or  occupation,  or  business,  is  a  material  injury  to 
nroperty,  then  there  unquestionably  arises  a  very  dit- 
lercnt  consideration.     I  think,  my  lords,  that  in  a  case 
of  that  description,  the  submission  which  is  required 
from  persons  living  in  society  to  that  amount  of  dis- 
comfort which  may  be  necessary  for  the  legitimate  and 
free  exercise  of  the  trade  of  their  neighbors,  would  not 


iMa 


KQllTY   CASKS   HIMI'LIFIKD. 


m 


,IFIEl). 

c  ground  tlmt  the 
.1  injury  to  the  prop- 
r  a  nuisance  on  tlie 
be  ii  nuisiince  is  pro- 
nilbrt.  With  rcgiinl 
al  inconvenience  and 
nt,  one's  quiet,  one's 
liscomposcs or  injuii- 
n«M'ves,  whether  thtit 
ii  nuisance,  must  un- 
circumstances  of  the 
ned  of  actually  occurs, 
jessary  that  he  .should 
>nccs  of  those  opcra- 
lied  on  in  his  imme- 

V  necessary  for  trade 
njoyment  of  property, 
itants  of  the  town  and 
nan  lives  in  a  street 
,  and  a  shop  is  opened 
lied  on  in  a  fair  and 
nd  for  complaint,  be- 
there  may  arise  much 
ried  on  in  that  shop. 
Bd  on  by  one  person  in 
iiid  the  result  of  that 
J,  is  a  material  injury  to 
jably  arises  a  very  dif- 
my  lords,  that  in  a  case 
sion  which  is  required 

to  that  amount  of  dis- 

V  for  the  legitimate  and 
ir  neighbors,  would  not 


,„ply  to  the  circumstances,  iho  imn.ed.ato  result  ot 
h  is  sensible  injury  to  the  value  of  property, 
dh    judges  held,  also,  that  the  f.ot  that  the  looal- 
•)v  whore  tiro  orten.ive  trade  was  carried  on  was  on. 

^::::i;::;;ioyed..thein.^^^^^^ 

n-Kles,  would  not  exempt  the  company  fvom  l.ab.l  t> 
;;;;!:  iction  for  damages  in  vespect  of  injury  created 
l.v  it  tc»  property  in  the  neighborhood. 

Mr    Tipping  now  came  into  chancery  and  pr^Kjed 
thrthcy    ni<^ht  be  enjoined  from  carrying  on  the.r 
ffensteVorks.     Here  the  defendants  laid  part.cular 
tt     on  Z  fact  that  the  plaintiff  had  nothing  to  com- 
1"  of  because  he  had  moved  into  the  proxmuty  ot 
:;nsive  trade.     But  the  court  held  that  the  u^unc- 
tion  would  not  be  refused  on  that  ground,  and  the  de- 
fendants were  ordered  to  stop  the.r  nulls. 

equity's  action,  anajvll    be  ^^-^^^l\    ^  .„,g„,,t.    The 

and  the  damage  «^*"°''*  ^/;.  ^'nt  •  a  mere  threat  will  not  be 

•unction  issued  out  of  the  Court  of  Chancery. 


188 


EQUITY   CASES   SlMl'LIFIED. 


PUBLIC      NUISANCE    ENJOINED    BY  EQUITY. 


HAMILTON  V.  WHITRIDGE. 

[11  Md.  128.] 

Mile.    Margaret    IIi\iuUtoii  piin^lmscd   a  house   oi 

Frederick  Street,  in  the  city  of  B:i!limore,  had  it  fur 

nished,  and  was  about  to  ujove  in,  when  she  foun« 

herself  the  defendant  in  a  chancery  suit.     There  i 

nothing  wrong  in  buying  a  house,  or  in  occupying  it 

but  Miss  Hamilton's  new  neighbors,  having  discoverer 

that  she  was  a  woman  of  easy  virtue   who  had  kept 

house  of  ill-fame  in  another  part  of  the  city,  wei 

shocked,  and  asked  the  Court  of  Chancery  to  restrai 

her  from  occupying  the  house  on  Frederick  Street  t 

a   house  of  ill-fame,  on   the   ground   that   the   clos 

proximity  to  thorn  of  such  a  place  would  deprive  thei 

of  the  comfortable  enjoyment  of  their  property,  ar 

greatly  depreciate  and  lessen  its  value. 

"^  The  injunction  wus  'punted,  and  Miss  Hamilton  hi 

to  locate  her  estai>lisliment  in  some  part  of  the  cii 

where  the  residents  were  not  so  sensitive. 

What  the  law  calls  nuisances  are  divided  Into  two  classes, 
public  and  private.  A  public  nuisance  Is  suppressed  by  Indlctm* 
or  Information;  It  Is  the  public  that  is  supposed  to  be  aggrlev 
by  what  the  defendant  has  done,  and  Individuals,  as  Indlvldua 
have  nothing  to  do  with  It.  To  this  rule,  the  above  case,  a 
others  like  It,  offer  an  exception,  viz.,  that  when  the  public  nc 
ance  Is  particularly  obnoxious  to  an  Individual,  It  Is  considered, 
far  as  he  is  concerned,  to  be  also  a  private  nuisance,  and  he  n 


^m 


ll'LIFIED. 


OIIfED    BY  EQUITY. 


EQUITY   CA8K8   PIMPLIFIED. 


139 


apply  for  an  Injunctloa  in  respect  of  It.    Or  he  n>ay  brinR  aa  action 

^  ilw  for  damages  If  he  like,  that  method  of  relief  better. 

"   irie  havH    n  there  are  many  cases  where  a  man  may  lv:ing  an 

actions. 


IITRIDOE. 

J.] 

pui(!lmsc(l   a  house   on 
f  B:'.!limore,  hud  it  fur- 
ive  in,  when  she  foun<l 
lancery  suit.     There  is 
use,  or  in  occupying  it, 
iibora,  having  discovered 
r  virtue    who  had  kept  a 
part  ()f  the  city,  were 
of  Cliancery  to  restrain 
5  on  Frederick  Street  as 
ground   that   the   close 
ihicc  would  deprive  them 
t  of  their  proi)erty,  and 
its  value. 

,  and  Miss  Hamilton  had 
in  some  part  of  the  city 
so  sensitive. 

■e  divided  Into  two  classes, — 
ice  is  suppressed  by  indictment 
,t  is  supposed  to  be  aggrieved 
ind  individuals,  as  Individuals, 
this  rule,  the  above  case,  anil 
iz.,  that  when  the  public  nuls- 
Indlvldual,  It  Is  considered,  so 
\  private  nuisance,  and  be  may 


140 


EQITITY   CASKS   SIMPLIFIED. 


NUISANCE  FROM  NOXIOUS  VAPORS. 


CAMPBEL.I.  V.  SEAMAN. 

[(i3  N.  Y.  568.] 

Mr.  Campbell  was  the  owner  of  a  dwelling  house 
and  grounds  in  tlie  vicinity  of  a  brick  kiln.  In  his 
croun.ls  wen?  onKunental  shade  trees,  grape  vines,  and 
fruit  trees.  Seaman,  who  was  the  owner  of  the  kiln, 
in  manufacturing  the  brick,  mixed  anthracite  coal  dust 
with  the  clay  and  sand,  which,  when  burned,  produced  a 
noxious  gas  which  was  carried  by  the  wind  whenever  the 
burning  was  going  on,  over  to  Campbell's  place.  Be- 
cause these  gases  injured  his  trees  and  vines,  Campbell 
asked  for  an  injunction  which  was  granted.  Seaman 
bcin<r  restrained  from  using  the  anthracite  coal  in  the 
way  he  had  been  doing. 

■The  law  of  smoke  and  noxious  vapors  is  that  every  person  has  b 
ri^ht  to  have  the  air  diffused  over  his  premises  in  its  natural  state 
free  from  artificial  Impurities.  Of  course  It  la  net  every  lltth 
irapurltv  which  another  may  send  into  the  atmosphere  which  wll 
be  enjoined,  otlierwlsc  no  one  could  build  a  «re  in  his  stave,  not  U 
speak  of  the  number  of  necessary  industries  which  must  more  o 
less  contribute  to  the  pollution,  in  some  measure,  of  the  air.  Bu 
nobody  has  a  right  to  contaminate  the  atmosphere  to  such  a 
extent  as  to  render  the  occupancy  of  his  premises  physlcall 
uncomfortable  to  a  person  of  ordinary  sensibilities,  for  any  of  th 
purposes  to  which  the  owner  may  choose  to  devote  it. 

The  law  as  to  smells  is  similar.  Stenches  of  such  a  character  t 
to  be  offensive  to  the  senses,  or  to  produce  actual  physical  discon 
fort,  or  which  interfere  with  the  comfortable  enjoyment  of  one 


LIFIED. 


iu^hty  casks  siMri.iFiEi). 


141 


10 US  VAPORS. 


BAMAN. 

.] 

f  of  a  dwelling  house 
a  brick  kiln.  In  his 
trees,  grapo  vines,  and 
the  owner  of  the  kiln, 
ed  anthracite  coal  dust 
hen  burned,  produced  a 
r  the  wind  whenever  the 
'ampbell's  place.  Be- 
?es  and  vines,  Campbell 
I  was  granted.  Seaman 
)  anthi'acito  coal  in  the 


)r8  \b  that  every  person  has  a 
premises  in  its  natural  state, 
:ourse  it  la  net  every  little 
)  the  atirosphere  which  will 
uild  a  fire  in  his  stave,  not  to 
iustries  which  must  more  or 
me  measure,  of  the  air.    But 
the  atmosphere  to  such  an 
of   his  premises  physically 
ry  sensibilities,  for  any  of  the 
lose  to  devote  it. 
tenches  of  such  a  character  as 
oduce  actual  physical  discom- 
rafortable  enjoyment  of  one's 


property,  are  nuisances.    The  question  is  well  put  by  a  N^w  -F  r..  y 
•hanrcllor  in  an  instructive  case  decided  in  18.i8.    .'Itisckar. 
ysTe   "  t  at  everything  that  renders  the  air  a  little  ess  pure  o 
,  to  any  cUent  di.asreeabh-,  is  not  necessarily  a  nuisance.    The 
noke  that  nay,  i„  ,:rtain  conditions  of  the  atmosphere,  descend 
cm  a  ie  .Ibor's  chimney,  the  fumes  that  may  --tl"-  b' 
afTed  from  his  kitchen,  though  not  desirable  or  agrecabUs  «     no 
.  nuisance.     Between  them  an.l  the  dense  smoke  f  om  a  kiln  or 
Utory  that  renders  breathing  difficult  or  painful,  and  smells  oHen- 
V    to  the  verge  of  nauseating,  there  is  .lebatable  ground  on  whl  h 
may  be  diflU^lt  to  Ux  the  exact  point  at  which  the  smoke  or  sm    1 
ca.mes  a  nuisance  in  the  eye  of  the  law."    Uoss  -  »»"«  'Z'^^; 
p   i(;2.    Therefore,  It  is,  that  no  general  test  can  be  laid  down,  but 
each  case  is  to  be  consi.iere.l  and  decided  on  the  facts. 

Loa  tion,  of  course,  has  much  to  do  with  the  ^-stlon  whether 
a  certain  manufactory  is  or  is  not  a  nuisance.  A  ""'-"-'-^'^''^j'^. 
manufactory  emitting  great  volumes  of  smoke,  is  ''^  ^-^^  "^ 
sunce  if  located  in  a  part  of  a  town  among  th.  houses  of  the  poor, 
as  If  in  another  part  among  the  residences  of  the  rich  •'rfl^^^^^^^^^ 
lai.lthe  Chancellor  in  Ross  «.  Butler,  post,  p.  102,  "  no  authority  that 
vrwarrant"  he  position  that  the  part  of  a  town  which  is  occu,.ed 

;    tradesmen  and  mechanics  for  r-'*^--' -'^^"^.'Xlwel^ 
trades  and  business,  and  which  contains  bo  ^IfS''"^"';"^"^  ,;^;„ 
ings  and  is  not  inhabited  by  the  wealthy  and  l"""^^";- '^^'^j  ;7 JJ 
and  convenient  place  for  carrying  on  business  which    eml  r«  ^J^ 
awellings  there  uncomfortable  to  the  owners  and  their  ^am  les  by 
offen  we  .mells,  smoke,  cinders  or  Intolerable  noises,  even  If    h. 
inhabltrnts  are  themselves  arti.ans  who  work  at  trades  occasioning 
ol  degree  of  noise,  smoke  and  cinders.     Some  parts  of  a  town 
Zhv  lapse  of  time  or  prescription,  by  the  continuance  of  a 
mmbe   oTrctollel  long  eiough  to  have  a  right  as  against  every 
one,  be  so  dedicated  to  smells,  smoke,  noise  au.l  «»"«'^' ^^^^  ^^ 
!dd  tional  factory  which  adds  a  little  to  the  <=«""««"  7"  ""•' 
ot  be  considered  at  law  a  nuisance  or  be  ^-tnU-d    n  equ^ 
There  is  no  principle  in  law  or  the  reasons  on  which  its  ruts  aic 
Tnded  whlc'h  sho'uld  give  protection  to  the  large  convforU  an^ 
°n  ovments  with  which  the  wealthy  and  luxurious  are  **;""""*1  ,^• 
:vnd  Si  to  secure  to  the  artlzan  and  laborer  and  their  families  the 
fewer  and  more  restricted  comforts  whicii  they  enjoy. 

Because  a  man  does  not  live  In  the  house  which  a  nuisance 
alleged  t^  Injure,  Is  no  reason  why  it  should  not  be  abated  at  his 
^uu    ill    hat  i    necessary  is  that  he  should  own  the  house,  and 


^42  K«iriTY    CAXKrt   HIMJ'Lll'IKl). 

that  tl>c  n..lHance  ai.ninl.hcs  lU  value  by  preventing  people  Irou. 
occupying  or  l.uyin«  It.    Peck  ..  Killer.  A  S'»'d  •  »•■  • 

If  A  B..  C,  1)., '»-»  any  "'""'^'•'"  '""'''•  "•""  ''""''^^'''  ^  nuisance 
j„  "  elr  nel^hhorhooci.  tlu^  may  all  join  in  a  sult^  to  restrain  it. 
continuance.    Tecit  v.  Elder,  3  Sandf.  127. 


KQLITY    CAISKS    SIMIM.IFIED. 


143 


itlng  people  Iroui 

lli7. 

•ted  by  a  nuisance 

lit  to  restrain  ItK 


NUISANCE  FROM  NOISE  —  BELLS. 


SOIiTAU  V.  I>K  HELD. 

[a  Sim.  (N.  H.)  133.] 

The  sound  of  chiinh  lu'lU  i.s  often  a  very  pleaaiint  one 
to  hear  at  ii  (Ustunce.     But  like  some  views,  it  ia  dis- 
tance wliieli  generally  lends  enchanlujent  to  the  sound  ; 
tor  it  may  he  (niestioncd  whether  the  bell-ringers,  them- 
selves, experience  any  particular  sensation  of  pleasure 
lioMi  the  melodies  they  i>rodnee.    Over  thirty  years  ago, 
Mr.  Soltuu  was  a  steady-going  family  man,  residing  in  a 
semi-detached  house  at  a  place  called  Clapham.     The 
adjoining  house  was,  from  1817  to  1H48,  occupied  as  a 
private  house,  hut  in  the  latter  year  it  was  bought  by  a 
religious  order  of  Roman  Catholics,  calling  themselves 
"TJio  Redemptionist  Fathers,"  and  those  gentlemen 
converted   the   house   into   a   chapel,    and  appointed 
De  Held,  a  Roman  Catholic  priest,  to  officiate  therein. 
One  of  the  Krst  acts  of  Mr.  De  Held,  on  entering  on 
the  scene  of  his  ministrations,  was  to  set  up  a  harsh 
and  discordant  bell,  and  to  ring  it  with  pious  unscrnpu- 
lousness  at  the  most  unearthly  and.nnnecessary  times. 
As  Soltau,  speaking  for  himself  and  the  neighbors  gen- 
erally, said  plainly :    "  The  practice  we  complain  of 
is  offensive  alike  to  our  ears  and  feelings  ;  disturbs  the 
(juiet  and  comfort  of  our  houses ;  molests  us  in  our 
engagements,  whether  of  business,  amusement  or  devo- 
tion ;  and  is  peculiarly  injurious  and  distressing  when 


ttMBH 


144 


Kl^l'ITY    CASKS   8IMI'MI'IKI>. 


nu'iiibors  (>r  our  lioiisfludd  li:H)[)iMi  to  l)o  iiiviiliils  ;  it 
loiids  also  to  il»'pn'iMiito  (ho  value  of  our  dwelling' 
liousos."  'I'liis  was  a  complaint  finaiiiiting,  not  from 
the  general  li(»«ly  of  Claphamites,  who,  being  at  a 
greater  distance,  wern  more  or  lens  indillerent  to  llic 
matter,  but  from  those  who  were  tito  greatest  siillerers, 
the  immediate  neighl>ors,  and  it  was  on  tliis  ground  ,>t 
special  annoyance  that  Mr.  Soltau  was  considered 
entitled  to  )»e  heard.  Mr.  Soltau  made  out  such  a 
good  case  that  the  Court  of  Chancery  enjoined  the 
••Fathers"  from  ringing  their  bells  so  us  to  disturb 
and  annoy  him  and  his  family. 

About  Ave  years  ago,  a  cliliiie  of  clmrcti  bells  iii  Philadelphia — 
the  bells  of  St.  Marks'  Church  —  were  restrained  on  account  of  Its 
disturbing  the  neighborhood.  The  parties  differed  inaterlnlly  about 
the  facts.  The  plaintiff  said  :  "  That  the  noise  of  such  ringing  was 
harsh,  loud,  high,  sharp,  clanging,  discordant,  producing  a  nuisance 
which  disturbed  rest  and  sleep,  distracted  the  mind  from  any  seri- 
ous employment.  Interfered  with  conversation  in  the  immediate 
neighborhood,  lessened  or  destroyed  social  and  domestic  luter- 
course,  peace,  and  happiness;  and  In  particular,  was  detrimental 
to  the  health  and  comfort  of  Invalids,  cliildreu,  and  persona  whose 
nervous  systems  are  delicately  organized ;  that  the  effect  was  not 
limited  to  the  periods  of  actual  ringing,  but  the  anticipation  of  its 
beginning  produced  a  nervousness  iind  excitement  which  to  all  is 
painful,  and  to  some  intolerable."  While  the  defendant  Insisted 
"that  the  chiming  complained  of  is  neither  a  public  nor  private 
nuisance,  being  in  truth  and  fact  musical,  mellow,  soft,  well 
plicUcd,  swtH;t,  and  harmonious,  and  of  such  an  agreeable  charac- 
ter that  It  lias  grown  to  constitute  ine  of  the  chief  attractions  of 
the  neighborhood,  and  has  materially  added  to,  rather  than 
detracted  from,  tlie  enjoyment  of  social  and  d  .  -Btic  life  among 
those  residing  in  tlie  vicinity."  Also,  ".Tliat  bell-ringing  is  part  of 
the  ordinary  iind  usual  sounds  of  city  life,  the  chiming  complained 
of  being  far  less  calculated  to  disturb  ordinary  citizens  than  the 
customary  bell-ringlng  In  factories,  schools,  and  some  other 
churches,  or  tlie  noises  of  cars,  wagons,  steam  whistles,  and  other 
sounds  Incident  to  a  city;  and  that  even  if  they  produced  on  some 


KD. 

to  1)0  invuliils  ;  it 
of  our  dwellinjr 
muting,  not  from 
who,  being  at  a 
indiircriMil  to  the 
greatest  sullercrs, 
oil  tills  ground  jf 
I  was  considered 
luado  out  8ucli  a 
.•ery  enjoined  tlie 
s  80  us  to  disturb 


ells  in  Philudelphla  — 
•Ined  on  account  of  Itn 
tfered  materially  about 
se  of  such  rini^ing  was 
,  producing;  a  nuisance 
e  mind  from  any  flori- 
:ion  in  the  immediate 
I  and  domestic  iutcr- 
:ular,  was  detrimt-utal 
!U,  and  persona  whose 
hat  the  effect  was  not 
the  anticipation  of  its 
iteroent  which  to  all  is 
,he  defendant  insisted 
r  a  public  nor  private 
il,  mellow,  soft,  well 
1  an  agreeable  charac- 
,he  chief  attractiopn  of 
Ided  to,  rather  than 
i  d  .  jBtic  life  among 
b  bell-ringing  is  part  of 
le  chiming  complained 
nary  citizens  than  the 
ols,  and  some  other 
urn  whistles,  and  other 
hey  produced  on  some 


K»il  ITY    CASKS   hlMI'I-IIIKI). 


145 


prisons,  wIkmi   first   hciird,  a  temporary    annoyauco,  tlie   liearers 
uciiUl  s<«on  gi'l  HO  aoiMistoincd  to  tiio  sound  that  they  would  not 
notice  It,  except  where  un  iinivgiuiiry  or  trilling  iiunoyiiucu  is  fos- 
I,  red  t)y  wilful  prejudice  or  heightened  by  nervous  excitability." 
llie  court  observed:    "  It  Is  alleged,  on  the  other  baud,   by  the 
,lifeiulants,  timt  bell-riuglng  and  the  dilming  of  bells  .lute  from  u 
rniiote  period  in  the  (.'lirlstiaii  Chureli,  that  they  have  been  received 
with  general  favor  and  acceptance,  and  that  it  would  bo  dillleult  to 
ilnd  any  great  |ioct,  from  Dante  down  to  our  own  times,  whose 
1  iTse  lioes  not  bear  witness  to  this  trutli :  thiit  th<!  sounds  so  much 
<  (juiplalned  of  are  not  a  mere  accidental  accompaniment,  but  have 
from  associations  beeome  un  Integral  part  of  the  celebration  of  the 
Siiuilay,  which  brings  an  opportunity  for  rest  to  all;  and  that  the 
loiirl  should  be  slow  to  believe  that  a  custom,  hallowed  »)y  tlie 
observance  anil  sancticmed  by  the  assent  of  successive  generations 
of  worshipers,  can  be  injurious;  and  that  In  fact,  in  the  present 
case,  as  will  be  apparent  on  examining  tlie  testimony,  if  some  per- 
sons inveigh  against  the  bells  which  give  occasion  for  this  suit, 
other  and  not  less  numerous  voices  are  railed  in  their  i)elialf.    The 
.oiirt  Is  conse.iuenlly   nsl<e(l  to  infer,  that  If  the  sufferings  for 
which  the  bill  seeks  relief  are  not  Imaginary,  they  are  the  iuevit- 
al.le  offspring  or  accompaniment  of  nervous  disease,  although  a 
morbid  or  excited  fancy  attributes  them  to  the  peals  issuing  from 
tlie  tower  of  ih^femhints'  church."     Eminent  physicians,  however, 
testified  to  the  deleterious  effects  of    the  chiming.     It  appeared, 
too,  that  the  bells  were  rung  four  times  on  Sunday,  and  twice  on 
tv.ry  week-day,  and  on  festivals  and  Saints'  days,  from  ten  minutes 
to  half  an  hour  at  a  time,  averaging  from  seventy-flve  to  ninety- 
four  strokes  a  minute.    This  was  deemed  too  much  Of  a  good  thing 
and  was  enjoined.    Harrison  v.  St,  Marks'  Church,  12  Phlla,  250. 
I  lake  the  report  of  this  case  from  Mr,  Irving  Browne's  very  enter- 
taining "  Humorous  Phases  of  the  Law." 

10 


146 


EQUITY    CASES    SIMPLIFIED. 


NUISANCE  FROM  NOISE —  IMPROPER   USE. 


BRODEK    V.  SAIL.L.ARD. 

[2  Ch.  Div.  t'.92.] 

Mr.  Siiillard,  as  the  judge  remurked,  found  himself 
in  a  very  unfortunate  position .     He  had  rented  a  house 
with  a  stable  adjoining  at  a  high  rent  and  on  the  usual 
terms.    He  had  occupied  the  house  as  all  people  do  who 
have  houses,  and  he  had  put  his  horses  in  the  stable  as 
all  people  do  who  lu.ve  stables,  when  suddenly,  very 
much  to  his  annoyance,  he  found  himself  the  defendant 
in  a  chancery  suit.     The  tenant  of  a  house  which  was 
close  to  the  stable  had  notified  the  landlord  that  the 
horses  of  Mr.  Saillard  made  such  a  noise  that  he  would 
have  to  leave  ;  and  the  landlord,  in  order  not  to  lose  a 
good  tenant,  asked  the  Court  of  Chancery  to  make 
Mr.  Saillard  move  his  horses  away. 

"  It  is  very  hard,"  said  the  judge,  •'  on  the  defendant, 
who  is  a  gentleman,  with  these  horses  in  his  stable,  and 
whose  horses  do  not  appear  to  make  more  than  the 
ordinary  noise  that  horses  do,  if  he  is  not  to  be  allowed 
to  keep  his  horses  in  his  stable.  On  the  other  hand, 
it  is  very  hard  on  the  plaintiffs  if  they  cannot  sleep 
ut  night,  and  cannot  enjoy  their  house  because  the 
noise  from  the  stables  is  so  great  as  seriously  to  inter- 
fere with  their  rest  and  comfort.  The  question  is  ou 
which  side  the  law  inclines." 

The  judge  came   to  the  conchisin    that    the   law 
inclined  in" favor  of  the  plaintiff,  and  Mr.  SaiUard's 


^3. 


I  ED. 


EQUITY    CASES   SIMPLIFIEn. 


147 


[PROPER   USE. 


iRD. 

ied,  found  himself 
had  rented  a  house 
it  and  on  the  usual 
Ls  all  people  do  who 
rses  in  the  stable  as 
lien  suddenly,  very 
niself  the  defendant 
a  house  which  was 
B  landlord  that  the 
noise  that  he  would 
L  order  not  to  lose  a 
Chancery  to  make 

, «' on  the  defendant, 

cs  in  his  stable,  and 

lake  more  than  the 

is  not  to  be  allowed 

On  tl)e  other  hand, 

f  they  cannot  sleep 

house   because  the 

IS  seriously  to  inter- 

The  question  is  ou 

isiri   that   the  law 
.  and  Mr.  Saillard's 


horses  had  to  go.     "If  a  stable  is  built,"  said  he, 
-not  as  stables  usually  are,  at  some  distance  from 
dwelling  houses,  but  next  to  the  wall  of  the  plaintiff's 
dwelling  house,  in  such  a  position  that  the  noise  would 
actually  prevent  the  neighbors  sleeping,  and  would 
fri^^hten  them  out  of  their  sleep,  and  would  prevent 
th?ir  ordinary  and   comfortable  enjoyment  of  their 
swelling  house,  all  I  can  say  is,  that  is  not  a  proper 
place  to  keep  horaes,  although  the  horses  may  be  ordi- 
narily quiet." 

The  test  in  all  these  cases,  to  determine  whether  the  noise  will 
be  stopped  by  injunction,  is  not  whether  the  party  is  using  his 
Di-operty  for  lawful  and  proper  purposes,  but  is  whether  the  use 
of  the  property  is  reasonable,  in  view  of  the  right  of  the  neighbors 
to  peace  and  c.uietness.    Said  Jehsei.,  M.  R.,  in  the  above  case. 
« I  take  it  the  law  is  this :  that  a  man  is  entitled  to  the  comfortable 
enioymen^  of  his  dwelling  house.    If  his  neighbor  makes  such  a 
noise  as  to  interfere  with  the  ordinary  use  and  enjoyment  of  his 
dwelllD"  house,  so  as  to  cause  serious  annoyance  and  disturbance, 
the  occupier  of  the  dwelling  house  is  entitled  to  be  protected  from 
it     It  is  no  answer  to  say  that  the  defendant  is  only  making  a 
reasonable  use  of  his  property,  because  there  are  many  trades  and 
many  occupations  which  are  not  only  reasonable  but  necessary  to 
be  followed,  and  which  still  cannot  be  allowed  to  be  followed  in  the 
proximity  of  dwelling  houses  so  as  to  Interfere  with  the  comfort 
of  their  inhabitants.    I  suppose  a  blacksmith's  trade  is  as  neces- 
sary as  most  trades  in  this  kingdom,  or  1       ?ht  take  instances  of 
many  noisy  and  offensive  trades,  some  o      vhich  are  absolutely 
necessary,  and  some  of  which  no  doubt  may  not  only  be  reason- 
ably followed,  but  to  which  it  is  absolutely  and  indispensably 
necessary  for  the  welfare  of  mankind  that  some  houses  and  some 
nieces  of  land  should  be  devoted;  therefore  I  think  that  (i.e.,  that 
plaintiff  is  making  a  lawful  u.e  of  his  property)  is  not  the  test." 

In  a  somewhat  earlier  case  Chancellor  Seliu.kne  hud  .lo'.vn  t.  e 
game  test  thus:  "  In  a  case  of  nuisance  of  this  character  there  ar-. 
always  fvo  things  to  be  considered,  -the  right  of  the  plaintiff  and 
the  right  of  the  defendant.  If  the  houses  adjoinini;  each  other 
are  so  built  that  it  is  manifest  that  each  adjoining  Inhabitant  was 
intended  to  enjoy  his  own  property  for  the  ordinary  purposes  for 


M^^M 


148  E«l  "V   CASKS   SIMPLIFIED. 

..cuit  and  an  -  ^^^-^^^^.^^^  ^ r s';^^;:^ 

ions  as  the  house  is  so  used  there  is  n«t    "^  ,^^^_ 

,„  law  as  a  nuisance  -^;^:^'^^Z;u:  honse'or  any 
But,  on  tiic  other  hand,  ,f  cither  ^^"y  ^^„,,,r  as  to  produce 
portion  of  it  to  unusual  P^^P"  ;;•.  "  ^"'J,^  ^^no  that  this  is  not, 
substantial  injury  to  his  "^-g^'^''-'  * ''PPf ^  ^U  property,  and  his 
according  to  Principle,  a  reasonable  use  of  h  s  ^  l'^^^^^^^,, 
„.i-hbur,  shoNving  substantial  injurj,  is  cntitieu  p 
BalltJ.  Ray,  L.K.  8C1..APP.4C.7. 


EQUITY   CASES   SIMPLIFIED. 


149 


ructed,  t'.en  so 
an  be  regarded 
Tht  to  prevent, 
house  or  any 
I  r  as  to  produce 
that  this  Is  not, 
"operty,  and  his 
to  protection." 


NUISANCE  FROM  NOISE- PROPER   USE. 


POOL.    V.  COLEMAN. 

[8  Daly,  113.] 

..  Drat  that  baby,"  said  Mf.  Pool.     Now,  Mi-.  Pool 
had  very  good  reasons  for  not  admiring  tl>at  particulai 
infant  J,  which  he  referred.     He  lived  on  the  fomth 
flcor  of  a  F.ench  flat,  on  Madi.on  Avenue,  New  York 
City      The  man  up  stairs  was  Mr.  Colenn.n  ;  and  the 
munup  stairs,  unfortunately  for  Mr.  Pool's  peace  ot 
„.i„d,  Ld  a  baby_a  cross  baby,  at  that.     The  baby 
,..B  at  that  infantile  period  called  teething,  and  refused 
TO  i.e  quiet,  either  day  or  night,  except  while  it  was 
ocin-  drawn  across  the  room  in  a  baby  carnage.     The 
flats? being  put  up  to  rent,  were  like  the  houses  in 
Pentonville,  described  by  Thackeray,- "  where  you 
hear  rather  better  outside  the  room  than  in  ;       so  the 
rumbling  of  the  carriage  overhead  was  very  clearly 
heard  below,  and  what  put  the  bal,y  to  sleep  k.pt 
Mr    Pool   awake.     Mr.  Pool   protested,  but  it  was 
of  no  use,  so  ho  asked  the  court  to  abolish  ^he  m.d- 
ni<rht  rides  of  the   enfant  terrible.  ,     ,     ,.      ,, 

The  terrible  infant,  however,  triumphed,  tor  the 
court  would  not  even  order  him  to  be  rocked  in  a 
cradle,  instead  of  drawn  round  in  a  carriage.  Ihe 
iud-,r.ent  of  the  court  contains  such  an  lntere^KIng 
discussion  of  Uio   .luestions   which   the   case  raised, 


150 


EQIITV   CASKS    SIMPLIFIED. 


that  a  lengthy  extract  from   it   may  not  be  out  of 
pUice :  — 

'♦  Certain  noises,"  said  the  judge  who  delivered  the 
opinion,  "  lik'j  the  noLso  of  a  pianoforte  in  a  neigh- 
bor's house,  or  a  noise  of  a  neighbor's  children  in  a 
nursery,  we  must  always  expect,  and  must  to  a  con- 
Hderable  extent  put  up  with.     In    the  city  of  New 
York  various  causes  have  combined   to  bring  about 
the  crowding  of  numbers  of  people  into  one  house. 
Poverty  forces  the  poor  into  tenement  houses,  and 
fashion  lures  the  well-to-do  into  French  flats.     But 
there  can  be  but  one  law  for  the  two  classes  of  dwell- 
ings ;  or,  perhaps,  1  miglit  say  for  both  varieties  of  that 
species  of  abode  called  apartment  houses.     The  re- 
striction of  the  use  of  a  baby  carriage  in  a  French 
flat    .vould   logically  be   followed    by  the   prevention 
of  the  use  of  sevving  machines  in  tenement   houses. 
Certainly,  the  noise  of  an  ordinary  sewing  machine 
must  be  quHe  as  offensive  as  that  tf  a  parlor  carriage, 
and  the  day  laborer   needs  rest  aiid   sleep  quite  as 
much  as   the  dweller   in   a  French  flat;  and  yet  no 
man  would  approve  the  enjoining  the  seamstress  from 
stealing   a   few  hours   from   niglit   for  the   purposes 
of  her  trade.     It  is  true  that  no  laborer  is  likely  to 
compUiin  of  any  disturbance  of  his  sleep,  for  ♦  weari- 
ness can  snore  upon  the  flint,  when  restive  sloth  finds 
the  down  pillow  hard  ; '  but  that  consideration  does  not 
change  the  principle.     Where  a  man  makes  himself 
one  of  a  hundred  gathered  under  a  roof,  and  selects 
for  his  home  a  hous6  so  flimsily  built  that  the  tread 
of  a  woman's  bare  foot  upon  a  heavily  carpeted  floor 
makes  a  vibration  to  be  complained  of  by  those  living 
on  the  floor  below,  he  cannot  expect  the  immunity 


EQUITY   CASES   HlMPLlFIKU. 


151 


t   be  out  of 

Iclivered  the 
ill  a  neigh- 
hildrcii  in  a 
st  to  a  con- 
[•ity  of  New 
briuj^  about 
OHO  house, 
houses,  and 
1  flats.     But 
ses  of  dwell- 
ieties  of  that 
es.     The  re- 
in a  French 
3   prevention 
ucnl   houses, 
injj  machine 
rlor  carriage, 
eep  quite  as 
and  yet  no 
mstress  from 
L,ho   purposes 
r  is  lil?ely  to 
),  for  ♦  vveari- 
ire  sloth  finds 
ation  does  not 
lakes  himself 
f,  and  selects 
;liat  the  tread 
carpeted  floor 
y  those  living 
;he  immunity 


from  noise  and  disturbance  wUicli  hs  would  enjoy  in  a 
Z  "occupied  1.V  his  o««  family  alone,  nor  cm  he 
"  rlirotl  er  occupants  from  any  use  of  theu-  own 
apartn  ents  consistent  with  good   neighborship,  and 
S  a  veasonable  regard  for  the  comfort  of  others, 
f  tie  rocking  of  a  cradle,  the  wheeling  of  a  carnage. 
,e  whirring  of  a  sewing  machine,  or  the  discord  of 
;    pUy  "n."-ie,  disturb  the  inmates  of  the  apartmen 
hou'lf  no  relief  by  injunction  can  be  obtamed   uness 
the  proof  be  clear  that  the  noise  «  unreasonable   and 
™Xwithout  due  regard  to  the  rights  and  comforts  of 
r.  .tclpants      The  situation  of  the  dwellers  ni  apar:- 
Int    "^    'it  has  its  advantages,  must  be  in  son.e 
Tspect    less  agreeable  than  that  of  those  who  occupy 
r,vho  e  house!    They  cannot  expect  the  same  qu,el 
„,d  repose.     A  man  who  lives  in  a  hotel  must  not  be 
Irrdif  aroused  fr„„,  sleep  by  tUe  heavy  loot  of 
s  me   'uest  passing  by  his  door  at   an   unseusonab  o 
r  °N„r  ou.*t  the  plaintiff  to  have  been  surpnscd 
K    ,b.  ,ise  o  •  a°ny  ordinary  means  which  the  defendant 
Jit  em^lt   o'lnll  his  sick  child  to  sleep.     No  nv.n 
ZTZl  L  such  an  immunity  from  no.se  that  h.s 
':  ,,bbo°cannot  stir  in  his  own  room.    There  ,s  noU^- 
„?in  the  affidavits  to  lead  me  to  the  O"-'-'""  ^^"^ 
the  defendant  in   having  this  carnage   msto  d  of  a 
.™dle    made  a  use  of  his  apartmems,  whuh  m  v,ew 
of  the  DlTlntiff's  right  to  quiet  and  repose,  was  nnreas- 
:,.b  e       t  "  ,.robable  that  a  cradle  swinging  upon 
;Wo  ::se   m  o'dmary  standards,  would  have  answered 
The  nurpose  as  well  as  the  carriage,  and  as  .t  would 
the  l"»POse  neighborship  might  suggest  the 

":'':;;;.       I  ml  terof'law,  holever.  If  the  defend- 
rrtlse'lfVIre  taken  sick,  and  obliged  to  walk  the 


152 


EQUITY    CASES   SlMl'LIFIEl). 


floor  all  night  through  pain,  the  plaintiff  would  have 
no  right  to  insist  that  ho  should  put  on  India  rubbers. 
As  has  been  said,  each  case  must  stand  by  itself,  and 
where  people  indulge  their  inclination  to  be  gregarious, 
they  must  not  expect  the  quiet  that  belongs  to  soli- 
tude." 


KQL'ITY    CASES   WIMPLIFIED. 


153 


ititr  would  have 
1  India  rubbers, 
id  by  itself,  and 
0  be  gregarious, 
belongs  to  soli- 


NO  TRADE  A  NUISANCE  PER  SE. 


CATL.IN  V.  VAL.ENTINB. 

[9  Paige  Ch.  675.J 

111  the  very  heart  of  a  i)()pul(»us  portion  of  the  great 
city  of  New  York,  the  defendant  was  erecting  a  build- 
ing to  use  as  a  slaughter-house,  when  the  adjacent 
property  owners  went  into  court  to  prevent  him. 
Here  the  defendant  admitted  that  such  was  his  purpose, 
but  denied  that  it  was  a  nuisance. 

The  court  permitted  liim  to  go  on  with  the  building, 
but  restrained  him  from  using  or  permitting  it  to  be 
used  as  a  slaughter-house,  until  the  final  hearing  of 
Ihe  case,  when  it  would  hear  evidence  as  to  Avhether 
the  slaughtering  of  cattle  at  the  place  proposed  was 
not  offensive  and  injurious  to  the  neighboring  inhabi- 
tants. 

The  Chancellor  said  :  "  The  situation  of  the  defend- 
ant's building,  in  reference  to  the  dwellings  of  the 
(omplainants,  would,  prima  facie,  render  the  occupa- 
tion of  such  building,  for  the  purpose  of  slaughtering 
cattle  there  a  nuisance;  and  as  there  is  no  real 
necessity  that  such  an  offensive  business  should  be 
carried  on  in  this  part  of  the  city,  where  many  valu- 
able dwelling  houses  of  the  best  kind  are  already 
(Mccted  and  are  continuing  to  be  built,  the  Vice- 
Chancellor  was  right  in  retaining  the  injunction  until 


154 


EQUITY    CASES   SIMPLIFIED. 


final  hearing.  Tho  answer  of  the  defendant  that  a 
slaughter-house  would  not  be  offensive  to  the  plaintitl' 
is  matter  of  opinion  only.  " 

No  trade  can  be  a  nuisance,  per  se,  because  It  Is  obvious  that  there 
may  be,  from  time  to  time,  improvements  discovered  that  may 
make  something  formerly  offensive  wholly  inoffensive,  and  it  is  m> 
reason,  because  a  certain  kind  of  manufacturing  establishment,  or 
a  certain  use  of  property,  has  been  in  a  previous  case  decided  to 
be  a  nuisance  by  a  court  hearing  the  evidence  as  to  the  manner  it 
was  conducted,  and  its  results,  that,  therefore,  every  manufactory 
or  use  of  property  of  the  same  kind,  is  to  be  taken  to  be  a  nuisance 
per  se,  and  without  hearing  any  evidence.    Formerly,  the  rule  was 
different,  and  the  courts  used  to  hold  that  those  trades  and  uses 
of  property  which  by  experience  had  been  demonstrated  to  be  of  a 
noxious  or  hurtful  character  were  nuisances,  per  se.    Acting  on  this 
principle  they  have  enjoined  such  things  as  a  blacksmith  forge,  a 
beer  house,  a  glass  house,  a  swine  sty,  a  caudle  factory,  a  tauucry, 
a  privy  etc.    But  now,  thanks  to  modern  progress,  the  courts  have 
changed  all  this,  and  as  said  by  a  Scotch  judge :  "  Science  has  gone 
far  to  prevent  many  things  from  being  a  nuisance  that  were  formerly 
of  that  description.    It  is  not,  therefore,  very  easy  to  determine  be- 
forehand, whether  or  not  any  given  thing  shall  prove  a  nuisance. 
Arnot  V.  Brown,  1  Macq  229.  .       , ,  i. 

But  because  there  are  certain  trades  and  uses  of  property  which 
have  been  demonstrated  to  be  productive  of  ill  results  as  a  general 
rule,  the  court  on  application  to  abate  such  an  alleged  nuisance, 
will  treat  it  prima  facie  as  such,  and  will  enjoin  it  until  all  the  evi- 
dence on  the  subject  has  been  produced  by  the  party  who  is  com- 
plained against.  On  this  ground  the  temporary  injunction  In  Catlin 
»,  Valentine  was  granted.  .-,0,0      r»n„ 

A  good  illustration  of  this  rule  arose  in  St.  Louis,  m  1879.  One 
•  Bussell,  m  an  aristocratic  part  of  the  city  of  St.  Louis,  commenced 
erecting  a  building  to  be  used  as  a  livery  stable,  and  the  residents 
made  a  great  effort  to  have  him  stopped.  But  Judge  Dillon 
refused  to  stop  him,  telling  the  complainants  that  a  livery  stable  in 
the  residence  portion  of  a  city  is  not,  as  a  matter  of  law,  a  nuis- 
ance to  the  improved  property  adjoining  or  near  it,  or  to  the  neigh- 
bors. But  at  the  same  time  he  said  to  Russell :  «  You  may  proceed 
to  finish  your  building,  aud  use  It  for  a  livery  stable.  But  if  It 
shall,  hereafter,  be  found  by  a  jury  or  court  that  your  stable  does 
interfere  with  the  comfortable  enjoyment  of  the  neighboring  prop- 


lefendunt  that 
0  to  the  plaiutill" 


EQUITY   CASES   SIMPMKIED. 


155 


,rty.  vou  cannot  complain  If  you  arc  perpetually  enjoined  from  the 
Sh;r  use  of  It  for  the  purpose  for  which  it  was  designed."  Flint 
1 0.  Russell,  8  Cent.  L.  J.  68. 


Is  obvious  that  there 
discovered  that  may 
ffi;u»ive,  and  it  Is  no 
ing  establishment,  or 
ious  case  decided  to 
!  as  to  the  manner  It 
e,  every  manufactory 
Eiken  to  be  a  nuisance 
jrmerly,  the  rule  was 
those  trades  and  uses 
monstrated  to  be  of  a 
)er  se.    Acting  on  this 
a  blacksmith  forge,  a 
lie  factory,  a  tannery, 
gross,  the  courts  have 
e:  "Science  has  gone 
ice  that  were  formerly 
'  easy  to  determine  be- 
all  prove  a  nuisance." 

ises  of  property  which 
ill  results  as  a  general 
1  an  alleged  nuisance, 
oln  It  until  all  the  evi- 
the  party  who  Is  com- 
ary  Injunction  In  Catlln 

t.  Louis,  in  1879.  One 
St.  Louis,  commenced 
ible,  and  the  residents 
I.  But  Judge  Dillon 
3  that  a  livery  stable  In 
matter  of  law,  a  nuls- 
aear  it,  or  to  the  nelgh- 
bU:  <' You  may  proceed 
very  stable.  But  If  it 
;  that  your  stable  does 
t  the  neighboring  prop- 


156 


EQUITY  CASES   HIMI'LIFIEU. 


NUISANCE  MAY  BE  DTS  AG  REE  ABLE  WITIIOUr 
BEING  HURTFUL. 


WAL.TER  V.  SEL.FE. 

[4  DeG.  &  8m.  318.] 
Near  tho  residence  of  Mr.  Walter,  there  was  a  brick- 
yard, and  in  the  process  of  burning  bricks  there  came 
from  tho  brick-yard  vapors  and  floating  substances 
which  were  vcrv  disngrceable  to  Mr.  Walter,  ho  d.s.- 
greeablo  that  he  asked  tho  Court  ..f  Ciuincery  to  re- 
strain  them.  The  evidence  showed  that  these  vapors 
were  very  obnoxious  to  the  inmates  of  Mr.  Walter's 
house,  but  it  did  not  appear  that  they  were  hurtful  in 
their  effect,  or  that  they  produced  any  tangible  nijury 

to  his  property.  „  ^u  ^  ■ 

The  question,  therefore,  arose  whether  a  smell  that  is 
simply  disagreeable  to  ordinary  persons,  but  not  hurt- 
ful, is  such  an  annoyance  to  ordinary  persons  as  to 
make  it  a  nuisance.     The  court  said  it  was.     -The 
nuestion,"  arises  said  the  Vice-Chancellor,  -whether 
this  is  a  nuisance  to  the  plaintiff  or  occupier  of  Im 
house,  a  question  which  must,  I  think,  be  answered  .u 
the  affirmative,  though  whether  to  tho  extent  of  ben.g 
noxious  to  human  health,  to  animal  health  in  any  sense, 
or  to  ve-etable  health,  I  do  not  say  or  deem  it  neces- 
sary  to  intimate  an  opinion.     *     »     *     I  am  of  opu.- 
ion  that  this  point  is  against  the  defendant.     As  tar  as 
the  human  frame  in  an  average  state  of  health  is  con- 


lEU. 


v.QVvn-  CAWKS  8iMPi.irn-i>- 


I.')? 


lABLE  WITHOUT 
L. 


1 

r,  there  was  a  brick- 
r  bricks  there  came 
floating  substances 
Ir.  Walter,  so  tlisa- 

of  Ciuincery  to  re- 
lI  that  these  vapors 
tes  of  Mr.  Walter's 
they  were  hurtful  in 

any  tangible  injury 

liether  a  smell  that  is 
srsons,  but  not  hurt- 
inary  persons  as  to 
said  it  was.  "The 
haucellor,  '•  whether 
f  or  occupier  of  his 
liink,  be  answered  in 
)  the  extent  of  being 
A  health  in  any  sense, 
say  or  deem  it  ueces- 
*  *  I  am  of  opiii- 
lefendant.  As  far  as 
tate  of  health  is  con- 


l.,v,  and  other  such  invonti.ns  loss  swoct  than  use      . 

ttl^h  not  in  a  medical  sense.     Ingredients  may 
[ievc  be  mixed  with  air  of  such  a  nature  as  to  atlec 
,       llute   disagreeably  and   oifensively   though   not 
l^olesomely."An.n.s.K.dyn,aybem.vsU^^ 

,l,,onic  discotnfort,  still  retainmg  .ts  health,  and  pel 
;;:  even  sufler  nu>ro  annoyance    ^.nu   ;.u^s  o 

,. /ia  air  fro.n  being  in  a  halo  cond.t.on.        And  the 
hiiek-makcr  had  to  close  his  yard. 

liurly  delicate  character,  Is  no  f /f"''^-^. ";"  ^^^^^n  Mr.  Cook 
arose  «ome  years  ago  P---\^;^^  ''^^.t,  jrLde  rom  cocoa- 
manufactured  colored  mats.  \»''^«^ '"**', 7,"'  ™  _:_  t^  d^y.  His 
,„a  fibre,  dipped  In  dye.,  and  then  h-;^-  ^'^^^  Zll^cL,  and 
,K.i,hbor,  Forbes,  earned  on  he  "^^""^^^^^^^^^^  ^^^^bes's  chlm- 
when  the  wind  was  in  the  east  a  kind  o  g^^JJ""^  *  ^^^  ^j  „i, 
„evs  was  blown  Into  Cook's  yard,  which  took  «'«  '^^''^y''"  ^ 
Iv-ot  h«  w,m  obliu'ed  to  dye  them  over  aRuin.    When  cook 

p"  «r  in  E.S  -.vhld.  will  lalerlcre  »ltU  hb  m.nul.cturo.    11  U  ■:•« 


158 


VAlVirr   CASKS   SIMI'MFIKD. 


be  traced  to  the  lu-lghbor,  then,  I  apprehoncl,  he  will  he  entltWd  lo 
me  hero  and  ask  relief."  Cook  r.  Forbes,  6  Eq.  Ca».  UiO. 
The  student  should  nirefnlly  note  this  dUflnctlon  between  Inj... 
lies  to  property  and  per>onal  InconvenUiue,-  m/.,  that  the  com  I 
will  Interfere  much  more  readily  In  the  former  class  of  cases  than  m 
the  latter  If  the  uMlsauco  Injures  property  to  any  extent,  that  is 
iienorally  enough,  while  It  is  not  every  little  Inconvenience  to  per- 
sonal comfort  which  will  obtain  the  aid  of  a  Court  of  Equity  for 
the  purpose  of  restraining  the  obnoxious  cause. 


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Photographic 

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(716)  872-4503 


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KWIUTY    CASKS    SIMIMIKIKU. 


COMING    TO   yUISANCE. 


JJKADY    V.   WEEKS. 

[;»  Barl).  Ii5f>.] 
Air.  Bra.lv  ..ul  oth.r  owners  and  residents  ..f  clwoll- 

:;;.itvasUin.llu,^VooUsshoulal>erestran,^^^ 
.i„;al.uiiaing  near  tluMU   as  a  Slaughter-house.     I 
:;.,Week;said,tirst.  that  his  su.gt.M..-^ 

,ot  emso  anv  sn.ell  that  any  one  eo-ikl  ..I.JchL  t.  ,  and, 
.  Ih    thd  ho  had  occupied  the  huildn,-.:  in  this  way 

;;:::;:t;:n  years,  ^^^^^ 

':;,;■„  the  h.st  three  or  f..ur  years  erected  the.r  houses 
„,,  come  to  live  there.  .'Pocon^ti- 

But  the  court  <rninted  the  ni|unaion. 

"  tliov  Slid    "   t  IS  not  necessai}  inai 
lute  a  nuisance,     tney  saiu, 

,luco»  tl.at  wliii'l"  i»  "fl''"»ivo  to  tlic  sens,.-,  ;.nJ  «IikI. 

;,:re,l  ti.  ,.nj„y„,..„t  of  nt. .....1  i-'"i;''-7"";;";;; 

r„rt.,l,U.      'H."  sU.ujrl,ler-liou»o   .1.   .|i"-5li<>"    »'"''" 
'a  .s  ;«■,•»«.  >a-,>  a  „ui»uu.o  !■>  tl,o  ,.lun,t,tts 

;;:m,iu,ak'  ti.e  .,ua,mc.,  ,u.„ia,  "f  ""-'-■■"  - 

...  "      V<»v  iiKi  Mr.  V>  eelvS  sue- 
iliat  it  is  not  a  nuisance.        .Noi  uiu  .ui .  »» 

a    ■  1,U  sec 1  plea.     "  "'ben  the  slaagh.e,-l,.„.se 

';.;octed,'MUeeo„rtcoatuuu.a,-'itwas,.e^^^^^^^^ 

fr„,„    the    thieUly    settled    ,.a.t  ot     the      ,  y  ,  1  u     a 
«eems  that  tl,e   eity  has   >.„w  gn.w.   u,.  t,.   .t,  .uul 


ICO  KQiiTY  i-Asr.s  siMi'i.iriKn. 

tl,„  the  nec-.ssltios  of  th.  o<,r,MH-.tion  requi,^  U.e 
ocvui.ul,ou  of  tin.  lots  in  the  imnuHluac  v.cnuty  tor 
dvvellin.^s.  WluM,  it  w.s  .nvtc-.l  it  nu-onnnoa-cl  no 
o„o,  hut  now  i.  intorfon-s  with  the  .nioynuM.t  o  h  e 
.u.lpn,,H.vtv,>nHMeuasto.hTnvetlKM.l:unt,tUof 

L  L  In.rhonoHt  of  their  .IwcUin.s.     1  here  eun  be 
„o  real  uecesBity  for  .■onauoti..g  -u-h  an  ollens.vo  busi- 
nc.ss  :is  slauirht.nnjr  rattle   iu   this  part  of    ho  ..•.t>, 
,,,•„,.  is  n<.w  ocenpiod  hyvaluahlo  and  -st  y  awell- 
i„...     As  the  oitv  extends,  such  nn.sances  should  be 
von.oved  to  the  vacant  ground  bey<.nd  the  .mmed.ate 
„ei.d>horhood  of  the  residences  of  the  e.t.zens.     1  Ins, 
public  poli<-v  ns  well  as  the  healih  and  eomtort  of    he 
,        ,  j.,.,  ;„•  the  euy   dennu.ds  ;  and   .t   seems  that 
Ih'.never  a,u,  olfensive   trade  bocon.es    an    uijunous 
nuisance  to  any  person,  such  person  has  a  remedy  by 
,u  action  on  the  case  tor  daniag'-s,  or  by  wr.t  <.t  nui- 
sance to  have  the  nuisance  abated,  upon  the  prme.ple 
that  every  continuance  thereof  is  a  new  or  fresh  nui- 
sauce." 


SMITH    V.   PHII.I-.IPS. 

[s  I'hila.  10.] 

Smith  was  the  tenant  of  a  fruit  farm,  out  of  which 

he  made  his  livi.g.  a.ul  he  was,  theretore,  not  at.  al 

L.c.d  to  see,  one  day,  a  buildino:  next  to  where  h. 

Lt  trees  were  in   blossom    turned   into   a  d,enuc.d 

ful  orv.  Whoa  his  lease  expired,  instead  of  Sm.th 
"oin.'somewhere  else  to  carry  on  his  business,  he  got 
Tx  renewal,  and  then  set  to  wo,k  to  have  the  coint  stop 


ion  require  the 
"uite  vicinity  for 
iiK'onnnodi'd  110 
njoymout  of  life 

tlio  pliiintitVd  of 
•<.     Til  ore,  fiiii  be 
an  olVensivo  bnsi- 
part  of  the  i-ity, 
luid  costly  (Iwell- 
<ances  should  be 
id  the  immediate 
,0  citizens.     This, 
lid  comfort  of  the 
lid  it  seems  that 
nes    an    injurious 

has  a  remedy  by 
or  by  writ  of  nui- 
iilion  the  jirinciple 
new  or  fresh  nui- 


IPS. 

farm,  out  of  which 
lerefore,  not  at  all 
r  next  to  where  his 
}.d  into  a  chemical 
1,  instead  of  Smith 
his  business,  he  got 
have  the  court  stop 


EQUITY   CASES   SIMIMJFIKI). 


Ifil 


the  chemical  factory,  which  it  was  clear  was  injurincr 
his  trees  and  fruit  very  much.   '  •         o 

The  cliemical  manufacturer  contended  that  as  Smith 
knew  by  exiierienco  the  effect  of  tiio  ciiemicals  on  the 
adjoining  hind,  he  had  voh.ntarilv  |)h.ced  himself  in  a 
position  to  bo  injured  by  rentinj;  the  farm  again,  and 
that  he  ought,  therefore,  to  have  no  relief. 

But  the  court  did  not  think  much  of  this  plea,  for 
It  held  that  the  fact  that  Smith  wouM  „ot  be  driven 
away  from  the  premises  was  no  defence. 

St.  Iltlen's  Mills  Co.  „.  Tipping,  and  Brady  v.  Weeks,  decreed, 
among  other  tl.insr.s,  that  the  fact  that  a  person  comes  to  the  nui! 
mince  voluntarily,  instead  of  the  nuisance  comlni:  to  him,  does  not 
deprive  him  of  hi.,  right  to  complain.  Smith  v.  Phillips  i.  an 
extension  of  this  principle,  viz. :  that  the  fact  that  the  complainant 
continues  to  rent  the  property  at  the  same  rent  after  the  nuisance 
is  establhshed  is  no  bar. 

11 


it;2 


EQUITY    CASKS    SIMn.IKIKD. 


miSANCE  -  LE^f^^TU  OF  T,ME   ..MMATEIUAL. 

ROSS   V.  BUTI^ER. 

[19  N.  J.  (Eq.)  2'.>4.1 

f    ovtriordiniirv    Ot  ot    smoke;  and,  tu.ii    ui« 

u  M  .,-,.d      ••  I  «m  n.-l  iuvarc."  »aia  the  Chancel- 

^.rr:        'u,th,'-,  V  o,.  e„al„i,hea  ,„h,ci„.e  hoM- 

;  „    ,  „Vlea,-   unmislakal.le   nuisance,  wh,oh.t,» 

:fe„  oa     o  con,mit   ..crioaieally  will   be  ..crm.ttea^ 

Cusc  it  aoc.  not  exist  the  ^^"^'^'^:[^ 

t    hem  elves  l.v  closing  the  house  tightly,  and 
protect  thcnistlves  =  ^^^^^^  ^^^^    ^^^^._ 

rpnviinn«»'n-door.s  tor  that  lime,      it  .=.  .        .- 

S      to  a  wnmg-aoev  that  he  takes  away  ordy  o.^ 
tw     ty-ei.l>th  of  his  neighbor's  propert^y,  comto    ,  or 
r     The  qualitications  contained  in  the  opimons  of 


F.I). 


EQl'ITY   CASKS   SIMl'LIIIED. 


1()3 


iMMATEltlAL. 


Jersey  town  com- 
xittoiy  neiiT  tliem 
torv  did  throw  out 
ke";  and,  thut  the 
thickest  kind,  was 
d;  but  as  it  also 
ice  each  month,  tor 
Ant  tried  to  defend 

1  not  an  element  to 
,"  said  the  Chancel- 
,lied  principle  hold- 
uisance,  which  it  is 

will  he  permitted, 
jater  portion  of  the 
m  of  it.  The  court 
ily  shall  have  their 
table  to  live  in  for 
s,  or  that  they  shall 
ic  house  tightly,  and 

It  is  surely  no  justi- 
takes  away  only  one 
property,  comfort,  or 
ed  in  the  opinions  of 


judges  that  a  lawful  business  will  not  be  rostraincd  for 
every  trifling  inconvenience,  and  that  persons  must 
not  stand  on  e-xtremo  rights,  and  l)riiig  actions  in 
respect  to  every  'natter  of  annoyance,  does  nut  refer 
to  the  proportion  of  time  lor  wliicli  the  nuisance  is 
continued,  l»ut  only  the  degree  or  kind  of  annoyance." 

If  the  act  complained  of  is  really  a  nuisance,  the  frequency  of 
itH  repetitions,  or  the  loiigtli  of  its  maintenance,  is  not  a  matter  to 
be  cousidereil.  Tiie  same  is  true  of  a  piil)lic  nuisance.  Thomas 
Gallagher,  of  Massaclmsetts,  being  prosecuted  for  maintaining  a 
common  nuisance,  to  wit,  a  tenement,  for  tlie  illegal  sale  of  intoxi- 
cating liquors,  the  proof  .vas  that  the  tenement  was  a  tent  in 
which  Thomas  had  dispensed  whiskey  and  water  for  tlie  space  of 
only  two  hours.  Yet  Thomas  di»l  not  escape  tlie  penalty.  It  was 
the  nature  of  the  act  done,  and  not  the  length  of  time  during 
which  it  was  committed,  that  constituted  the  offence,  (juoth  the 
court.    Cora.  v.  Gallagher,  1  Allen,  592. 


1 


111  I 


KQUITY    CASKS   SIMP'    KIKD. 


INFRINGEMENT  OF  PATENTS. 


CAI^DWELT^  V.  VANVLISSENGEN. 

[It  Hare,  415.] 
In  the  your  1838,  there  was  gnuited  to  Jiimes  Lowe,  a 
piitciit  for  ii  ste-ain  screw  for  i)ro))elliiig  vessels. 
Twelve  years  thereafter  some  ship-owners  in  Holland 
oominepoed  to  manufacture  these  screws,  and  to  apply 
them  to  their  steamships  which  ran  between  Holland 
and  England.  Finding  this  out,  Lowe's  assignees,  the 
owners °of  the  patent,  applied  to  the  Court  of  Chancery 
to  enjoin  the  Dutchmen  from  using  the  patent  in  Eng- 
lish waters.  Tlio  defendants'  lawyer  had  two  ohjections 
to  offer,  viz.:  — 

1.  In  the  first  place  he  said  that  the  court  could  not 
exercise  its  jurisdiction  restraining  the  use  by  foreigners 
of  the  patent  on  board  a  ship  built  in  a  foreign  coun- 
try, and  owned  and  mamied  by  subjects  of  that 
country. 

2.  In  the  second  place,  he  argued  that  th'e  plaintiffs 
should  first  establish  at  law  that  their  patent  was  a 
valid  one. 

But  the  Chancellor  overruled  both  objections.  •'  I 
take,"  said  he,  "  the  rule  to  be  universal  that  foreigners 
are,  in  all  cases,  subject  to  the  laws  of  the  country  in 
which  thev  may  happen  to  be,"  and  as  to  the  second 
point,  he  said  :  *'  .The  question  whether  the  court  will 


i:i). 


F,(^UITY    CASKS    MMI'MI'II'.I). 


icr) 


VENTS. 


5ENGEN. 


toJiimesLowc,  a 
•opelliiig  vessels. 
wners  in  Holland 
vws,  iintl  to  apply 

between  Holland 
ve's  assignees,  the 
;^ourt  of  Chancery 
the  patent  in  Eng- 
had  two  ohjections 

he  court  could  not 

le  use  by  foreigners 

in  a  foreign  coun- 

subjects    oii    that 

I  that  th'e  i)luintiffs 
their  patent  was  a 

h  objections.  "  I 
rsal  that  foreigners 
3  of  the  country  in 
d  as  to  the  second 
ther  the  court  will 


interf(M-c  to  protect  a  i)atentee  before  lie  has  o>tal)lislii'il 
liis  right  iit  law,  or  will  suspend  its  interferonc<>  until 
the  right  at  law  has  I)eeii  established,  appears  to  nie  to 
depend  upon  very  simple  principles.  It  is  part  of  the 
duty  of  this  court  to  protect  property  ixMiding  lit'ga- 
lion,  but  when  it  is  called  on  to  exercise  that  duty,  the 
court  recjuires  some  proof  of  title  in  the  party  who 
calls  for  its  interference.  In  the  case  of  a  new  patent 
this  proof  is  wanting;  the  pul)lic,  whose  interests  are 
idfected  by  the  patent,  have  had  no  op|)ortunity  of  con- 
testing the  validity  of  the  patentee's  title,  and  t',o 
court  therefore  refuses  to  interfere  until  his  right  has 
Iteen  established  at  law.  But  in  a  case  where  there 
has  been  long  enjoyment  under  the  i)atent  (the  enjoy- 
ment, of  course,  including  use),  the  public  have  had 
the  opportunity  of  contesting  the  patent,  and  the  fact 
of  their  not  having  done  so  successfully  atfords  at  least 
prima  Jacie  evidence  that  the  title  of  the  patentee  is 
(rood,  and  the  court  therefore  interferes  before  the 
right  is  established  at  law.  In  the  present  case,  I 
thiidi  that  the  plaintiffs  have  proved  such  a  case  of  en- 
joyment under  the  patent,  and  of  their  title  having 
l)ecn  maintained  at  law  against  the  several  attempts 
which  have  been  made  to  impeach  it,  that  the  court  is 
l)ound  at  once  to  interfere  for  their  protection,"  and 
the  injunction  was  issued. 

Equity's  relief  l)y  injunction  is  very  elTlciicious  against  tliose 
wbo  infringe  patent  rights,  and  Is  better  than  an  action  for  damagcM 
iitlaw,  in  three  ways:  First,  tlie  court  will  order  an  iuspeetion  of 
t lie  defendant's  machinery  or  premises,  to  see  in  what  particulars 
the  plaintiff 's  patent  is  being  infringed ;  second,  it  will  perpetually 
enjoin  these  infringements,  and  thirdly,  it  will  make  the  defendant 
.iccoHut  for  the  profits  he  has  made,  and  will  make  liim  show  them. 

Of  course,  the  plaintiff  must  have  a  valid  patent  in  order  to  give 


ir. 


KQVJITY   CASKS   SIMir.iriKI). 


Imn  m.v  title  to  c.mc  luto  fruity  for  relU-f ;  l.nt  tho  uhovc  caso  cs- 
tabllstu-stl.0  ruU- that  when  tho  plaintiff  s  title  Is  admitted  «r  seems 
clear  from  all  the  circumstances  to  the  court,  equity  will  not  com- 
pel  him  to  establish  it  at  law,  and  from  the  kn«th  of  time  of  its  ex- 
istence a  presumption  of  an  exclusive  right  will  arise. 


EQUITY    CASES    MMPLIIIKD. 


1(17 


tint  tlio  ul)ovc  case  cs- 
,1c  is  admitted  or  scemH 
t,  equity  will  not  com- 
L'lijjtli  of  time  of  its  t-x- 
vill  arise. 


LITEUARV  riRACY. 

PRINCE  ALBERT  v.  STRANGE. 

[1  MacN.  &(i.  -'•"'•l 

WlKMi    Queen    Victoiiii    wa-    a   J.'<>'"1    '""">'   .V^''"'« 
votiuger  thuu   she   is   ,„.w,   sho  :in.l   her  husl.an.l,  K. 
M.nusc  themselves,  .na.le  some  etehinirs,  u.ul  hue   oo,..es 
,na»le  lor  themselves  aiul  their  ii.tiumto  friends.  .,n  u 
private  press.     Somebody  surreptitiously  obtained  a 
'.„py  of  the  set  an.l  sold  them   to  a  bookseller,  who, 
knowing  the  public  taste  for  anything  smaekn.got 
mvaltv-  advertised  the  forthcoming  publication  of  the 
otohiags  and  solicited  orders.     The  pictures  must  have 
been  very  bud,  for  Prince  Albert,  when  he  heard  tha 
they  were  going  to   be  given  to  the  public,  obtan.ed 
tVom  the  Court  of  Chancery  an  injunction  restrainmg 
„,,i,  nubli<-ati<,n,  as  also  that  of  the    catalogue  an- 
nouncing them,  by  the  defendant,  although  he  was  a 
bona  fide  purchaser.     This  was  on  the  groun.l  that  the 
author  or  composer  of  a  work  of  literature,  art  ..r  sci- 
ence, as  long  as  it  is  unpublished,  has  a  right  m  it 
which  no  one  can  invade,  without  his  consent. 


FOLiSOM  V.  MAU9H. 

Jared  Sparks  wrote  a '  •  Life  of  Washington ,' '  in  twelve 
volumes,  and  duly  copyrighted  it  according  to  the  laws 


KIK 


r.C^inV    (ASKS    MMI'I.IHKI). 


„f  till'  UiiitiMl  Sliilos  ill  this  r.',L';ir'l.  S<-v.t;iI  y«'!ir.s 
i.rici.tlif  Hrv.ChMilc^W.rpliiir.MViisM-izfdwitliJiliUf 
,l,.>ir.'  In  lioiK.r  tin-  ratiicr  of  UU  .•oiiiitry  in  a  liivc  way, 
•III. I  >.M.ii  ri.iiu  Ills  pill  tliiMv  jippcaiTil  ii  "  LilV  el" 
Wa.-liiiiu'loii  "  ii'  •"■"  voliiiiu's.  Wht'ii  Mr.  S|iarlN-< 
l.ul.iislicrs  caiiu!  t<>  1<>«)U  at  tlio  new  work,  liify  dis.ov- 
cif.l  tiiat  tlicn-  was  a  <r..n.l  .Iral  of  similaiily  lu'twrcii 
111..  lu...  or  111.'  SM  pau;..-^..!'  Mr.  rpliaiii"M  work,  ^'t'-\ 
l»a-ris  hail  l».'tii  cnpi.'il  fiitirts  fr.)iii  Mr.  Sparii^' 
"  Life."  TlH'ir  rcnioiistrancod  ln'iiijr  in  vain,  (licy 
souL'lit  the  assistMiice  of  tho  (\>iiit  of  Cliaiici'ry,  wlicrc 
an  iii)Uiicti()ii  was  olilaiiifil  n-stiainiiii:  Mr.  Upliain 
Iroiii  st'iliiiji;  Ills  Ixtok,  anil  or.U'riiig  an  a.couiit  of  hi.s 
profits  to  1(0  taken. 

After  ;i  work  N  i.iilill.-lii'<l  tlun-  is  no  LoiiiiuDn-law  oopyriijht  In 
tlr  rnil.Ml  Stat.-s.  An  .uitlior  w'.io  .Ifsiivs  to  p.ililMi  Mt*  Dook  iniil 
..litiiin  a  monopoly  of  ii«  siil<-  niiist  t-onii)ly  with  tlif  c()pyri'.:Ul 
Hlalutes,  by  entering  it  with  llic  Libnuian  .)f  ConjiresH,  uuil  prtiil- 
iuK  upon  .-acli  copy  tlu-  notict-  of  .opyri;;!.!. 

But  lirfnrr  puhiicitinn  an  aiitlior  lias  a  .•ommon-law  I'opyriRlit, 
an.Ino  oiie  wiio  lias  ol)l;unr  I  liis  work  williont  liis  cons.-nt,  ran 
in..ke  any  iisj  of  it.  I'rintin;,'  a  fl■^v  copies  of  a  book  or  >.k.lcli  lor 
tlie  use  .".f  your  friends,  or  delivering  a  lecture  lo  students,  or  per- 
forming' a  play  on  tlie  sta-e,  is  held  not  to  be  a  publication  of  the 
ihin^'  so  an  lo  divest  the  auihor's  proiierty. 

An  author  who  has  duly  copyriulite.l  his  work  holds  title 
agaiusl  the  world,  and  eipiity  will  iiijoin  any  person  who  publishes 
it  without  his  coiiNent.  To  this  principl'',  however,  there  are  two 
ipialillcauous:    - 

1  K'lHity  irill  md  a.-isint  the  im>i>rH<n-  i>f  an  immoral,  UhduM,  oh- 
nrftie  or  tK-diliuiis  liook,  pamphlet  i,r  irork  of  art.  The  United  Stat.-s 
Circuit  Court  a  few  years  since  refused  to  enjoin  the  unauthorized 
production  of  tlie  "  Hlack  Crook,"  ..n  the  ground  that  "  it  panders 
to  a  prurient  curiosity  or  aii  obscene  imaiilnation  by  very  questiona- 
ble exhibitions  an.l  attitudes  of  the  female  per.son."  Martiuettl  v. 
Ma;;uire,  I  Deady,  '.'U'.. 

■>.  E'luity  mil  not  enjoin  honti  Me  <inotationn  or  d  hoiin  Jide  nhridfi- 
ment  of  a  copiiriuhled  ictrk.     U  is  clearly  settled  that  it  is  not  au  in- 


•.I). 


KgilTY   (•A>i:s    hIMI'I.IFIKI) 


Km 


,  Scvcriil  y«'!irs 
!<('iz»'<l  Willi  !i  liUt' 
Irv  ill  a  like  way, 
nil  a  "  liit'f  "I 
It'll  Mr.  S|)arks" 
)rk,  tlu'V  tliscov- 
milaril y  Ix'lwccii 
haul's  work,  ;>•'»•> 
1  Mr.  SparkN' 
i;  in  vain,  tlicy 
CliaiK't'i-y,  wlicrc 
in,<r  Mr.  Upliain 
n  aicouiit  of  liis 


iiion-law  copyritfht  In 
l<'.ll)Il^ll  IiIh  nook  iind 
'  with  tlu'  ci)|i\rii:Ul 
Coiijirfss,  luiil  prtiii- 

inmon-law  copyright, 
loul  his  consent  can 
a  boolv  or  slsi'tcli  tor 
•  lo  students,  or  per- 
a  publiciitlon  of   the 


frln^lfinciit  of  mnpyri^lit  of  a  l>ool<  to  make  h,,ii,t  ihlf  i|iiotatloii« 
or  I'xtrncis  from  It,  or  ii  hma  fldc  uhrldfjcinciit  of  It,  «r  to  mnko  a 
hunfi  Jhlc  \\Hi' i\i  the  iciininon  Miatcrials  In  the  composition  of  un- 
otlicr  work.  Unt  the  (picstion  always  arises,  lias  llieie  heen  a 
k'Hiliinule  iisc  of  the  copyri^lit  pnltllcation  l»y  the  fair  exercise  of  a 
mental  operation  deservini,'  the  character  of  ti  new  work?  If  4>ne, 
mstead  of  seareldni;  into  the  common  sources  and  ohMiininn  his 
materials  from  them,  avails  himself  <d'  the  labor  of  his  predeces- 
sor, and  adopts  his  arrangement,  or  does  so  with  only  a  colorable 
variation,  this  will  be  an  Infrinticinent.  In  tlie  leadin«case  above,  It 
was  artjned  that  the  Rev.  Mr.  I'pham  had  not  ;:one  beyond  tliis;  l)Ut 
the  court  thoujjiil  otherwise.  "  Wliat  constiHites  a  fair  and  lunia  title 
aliridument,"  said  .Iud«e  SioitY,  "is  one  of  the  most  dilllcult 
points,  under  particular  circumstances,  which  can  well  arise  for 
judicial  discussion.  It  Im  clear  that  a  mure  Heloctlon  or  different 
arranijement  of  parts  of  the  orijiinal  work,  so  as  to  lirlns;  tie  vf.rk 
into  a  smaller  compass,  will  not  be  held  to  be  such  an  abrid^'m(  i.t. 
Ttieri!  must  be  real,  Huhstantial  condensation  of  the  materials,  and 
intellectual  labor  and  jtidfrmenl  bestosved  thereon,  and  not  merely 
tlu;  facile  use  of  the  scizzors,  or  extracts  of  the  esser  ,  I  parts 
constitutin}:  the  chief  value  of  the  original  work  "' 

Kiju'  >        -I  somelintes  enjoliM'd  the  publication  of    jirivate  It'- 
ll r.s.    The  rules  on  this  subject  are  : — 

1 .  The  writer  of  a  letter  has  such  a  rl^jht  In  It  as  to  entitle  him 
lo  restrain  its  publicotion  by  the  parly  written  to  or  his  assigns. 

2.  Tlic  party  written  to  has  a  riaht  to  restrain  its  publication  by 
a  stranger. 


his  work  holds  title 
person  who  publishes 
iwever,  there  are  twv) 

immoml,  lihdtiuH,  oh- 
t.  The  United  States 
oin  the  unauthorized 
)und  that  "  it  panders 
ion  l)y  veryque.stiona- 
:i:.son."     Martiuettl  t'. 


K  or  (I  houn  jUli'  tihriilj- 
,eU  that  it  is  not  au  in- 


170 


EQtlTV    t\SKa    hlMl'MllKU. 


rlUDE.^fARKS.-FAMILr  SAME  USED  TO  DE- 
CEIVE. 


CUOFT  V.  DAY. 


[7  Heav 


•>:•.•'■.  ■_' 


Tud  L'l.  Cas.  rxi:'..] 


l,,y&  Marlin-s  hlackinj^  is,  or  was  at  tho  tunc  ot 
U.n.o,al.out  a.  well   kuowuiu    England-^ 

Tvn..  nowspaiKM-  or  tho  Tower  of  London.      M^ 
'       esahli  lull  in  l-SOl,  and   had    hc.n  u.   ex.stencc 

,.,,  oonunon...Ml  nuvking  black.ng  hunselt,  -  J^^"  ;^ 
,  l^orson  of  tho  name  of  Martnn  ol>tanu.d  1 1  e  u  oi 
his  nan,c.  and  began  to  ofVer  to  the  imhl.c  Da>  & 
'L-n-shhu-king,  put  up  in  l>ottlos  and  iK-anng  labels 

h'viU  a  .onoral  resen^blan.-c  to  those  ot  the  or.g.^ 

fi   n  °The  latter  did  not  like  this  at  all,  and  requester 

tl...  Court  (>f  Chaneery  to  restrain  the  nephew.     A. 

u.;   on  was  issued  to  this  etlW.t.      -I'he  prn,c,pb 

T      ^•u-sis,-.aidtheeourt,''thatnomanhas, 

.^:;:.ll  his  o.vn  goods   as  the  goods  of  anot^^ 

No   n.n  has  a  ri.ht  to  dress  hin.self  in  colors  or  adop 

^  d  I  ear  svn.bols  to  which  he  has  no  pecubar  or  o> 

.  ive  ri.ht,  and   thereby  personate  m^other  perso 

Iho  purpose    of  inducing  the  publ.c  to  suppos, 

;JrtlLt.l,istluaotherpers.n.orthat^.s- 

noeted  with  and  selling  the  nmnutacturo  ot  such  oth. 
person,  while  he  is  really  selling  his  own. 


[,1KIEU. 


lUniTV    CASKS*    SlMI'MlIlcn. 


171 


TRADE-MARKS --NO  HE  LIEF  TO  WJiONGDOEli. 


A  ME  USED  TO  DE- 


.  Cas.  5C.:5.] 

or  was  iitllie  time  of 
I  ill  Eiiglaiul  as  lUe 
(,f  London.  The  firm 
lad  l>et'i»  »»  existence 
icw  of  the  senior  part- 
ig  himself,  and  finding 
ir,  obtained  the  use  of 

to  tlie   pulilie  Day  & 
ttles  and  bearing  labels 
to  those  of  the  original 
hisiitall,  and  requested 
train  the   nephew.     An 
;'(f('(t.      "The  principle 
irt,  "  that  no  man  has  a 
s  the  goods  of  another, 
msclf  in  colors  or  adopt 
\  has  no  peculiar  or  ex- 
jrsonate  another  person 

the  public  to  suppose, 
jrson,  or  that  lie  is  con- 
mufacture  of  such  other 
ing  his  own." 


SEABUltY  V.  GROSVENOR. 

[14  Blatf.hf.  2(i2.] 

A  certain  tirin  in  New  York  prepared  phislers,  which 
tliey  called  "  Benson's  Capcine  Plasters."     After  th.- 
manner  of  patent  medicine  men  generally,  they  adver- 
tised their  great  remedies  for  pains  ami  rheumatics  all 
over  the  country.     The  readers  of  their  advertisements 
were  informed  that  a  celebrated  chemist  had  recently 
discovered   a   vegetable  of  extraordinary  value,  with 
which  he  had  etfected  the  most  marvellous  cures  ;  that 
this  threat  remedy  was  called  Capcine,  and  was  used  m 
the  Tselebrated  Capcine    plasters.     The    easily   gulled 
public  of  course  swallowed  the  story  and  bought  the 
plasters.     Attracted  by  the  profit  to  be  made  from  th<^ 
name,  another  party  commenced  to  sell  an  article  li.> 
called   Capcine  plasters  ;    and  to  enjoin    him  from  so 
doini:  the  firm  brought  a  suit  in  eipiity. 

Unfortunately  for  them,  however,  the  evidence  i.i 
court  proved  that  there  was  no  such  vegetable  or 
article  as  Capcine  known  to  chemistry  or  medicine,  and 
on  this  ground  the  injunction  was  refused.  "  The 
authoritic^s  are  clear,"  said  the  court,  "  that  in  a  ca^e 
of  this  descrii)tion,  a  plaintilf  loses  his  right  to  chum 
the  assistance  of  a  Court  of  Equity." 

V  man  manufacturing' or  selling  any  kind  of  f-'oods  has  a  right  to 
distinguish  them  bv  a  symbol,  which  symbol  is  called  a  trademark, 
and  Is  used  to  show  that  be  is  the  raamifacturcr  orselloras  the 
case  may  be.  For  another  person  to  use  his  symbol  is,  therefore, 
(1)  an  invasion  of  his  property  ri^'lit,  and  (2)  a  fraud  on  the  public, 


172 


KQUi'i'V  (ASKH  sniri.niKn. 


xvh..  an.  .■nticecl  into  purchasing  fioo.ls  of  B.  tlunkinj,'  th.y  an-  tl... 
:  ;:  ^f  a!  to  prevent  this  sort  of  t..in„  -."'^  J  >  ;';j;;:'V^; 
i„f,in.'on„.nt,  of  a  trade-mark;  ex.-ept  as  was  hel.  in  th.  Cap 
;:;,;.. "L..  a.,ovc,  «....,  .h.  ..laiutilf  .mnself  is  guilty  of  frau.l. 

;:;;::■    :;is,:^:a;i.u.  of  a. uercanU.e..rae.^ 
„„.  ..xclusivf  riglit,  whirl,  right  .•<p.ity  will  i  rotect.    The  prior  ust 
.  ,o     h  to  enU.l .  him,  even  although  it  has  only  been  for  a  very 
^:,     ui      A  linnorlce  maKer  sta.pe<,  lus  sticks  ^^^^^'^^ 
..Anatolia."  an.l  ahout  the  heginniui?  of  September,  l*'''-  l'"\     '^ 
,^  on  the  u.arket  with  this  symbol  on  thern.    I^^  "^     - 
;-oeks  after,  a  rival  can.ly-maker  comuu-nceel  to  stamp  his  h  ,.  o>  u . 
•itl'  l^e  sa me  word.     l/..,uorice  ma..  No.  1  was  able  to  e..jo.n  h.s 
,  U  "   t  has  been  pressed."  said  the  court  which  granted  the 

i      on   "hat  the  plaintiff  had  no  time  to  ac<,uire  a  proper  y  .u 
;i:S::mark.  p.-<.perty  in  a  mark  of  thi.  '<;"';-7;"J  ^  :::' 
deut  user  to  establish  a  repute  iu  the  na.ne.     It  was  no  ,  I'O  ^^  *-  ' 
■ssarv  to  say  when  property  in  such  a  .nark  was  "M-ab  o  of  bdn, 
.uM,ui.-ed  •  probably  it  n.ight  be  necessary,  to  support  a  olll  of  th  s 
;         t;;l;U.e  ma?k  should  have  been  'MM-bod  to  the  goods  HghN 
fully  bv  the  plaintiff ;  secondly,  that  the  article  to  which  t  is  appl.  d 
h,ui?b    an  arlicl.  vendible  in  the  market;  thirdly,  that  the  de- 
:::;;ut  knowing  this,  has  imi,au.d  it  for  ^^Y^^^^^l^!^^^ 
uoodsiutothcnarket."     McA..<lrew  ..  Hassct,  '"' W- «•  '  "  •    01;. 
T  (N   s  )  .;5.    But  it  has  been  ruled  that  property  ,n  a  trademark 
cannot  be   ac.p.ired   before  the   article  is  actually  l-t  "P-       « 
market  for  sale  -  until  that  tin-e  any  one  may  use  .t,  a.^  obt_ain  the 
exclusive  right  to  it.     Maxwell  v.  Hogg,  1..  U.  -'  Ch,  App.  .W, . 

But  it  is  not  every  word  or  phrase  that  may  be  the  subject  of  a 
,rade.mark.  "  1  have  not  the  least  doubt."  said  an  English  .pidge 
.one  else,  "  that  if  the  plaintiff  has  invented  a  fanciful  and  ndicu- 
•  uLme  land  the  more  ridiculous  the  'setter  it  is  for  his  buM^ 
ness-and  has  used  it  in  his  trade,  that  the  court  would  take  ca  e 
that  nobody  else  should  use  that  ab.urd  name,  for  such  "-;'*;«" '^ 
only  be  a  user  for  the  express  purpose  of  imitating  the  r'-  "  «  ^ 
and  so  defraudi..g  the  plaintiff,  by  representn.g  the  goods      a.  u- 

factured  by  one  person  to  be  the  goods  '"^""*;''^;°^^«'*,,^f '"'^^  rd 
Voung  V.  Macrae,  »  Jur.  (N.  s.)  322.  It  .s  better  that  the  wd 
should  be  absurd.  -  it  is  necessary  that  it  should  be  to  some  extent 
fanev.  -  for  unless  a  man  has  an  exclusive  property  m  the  article 
itself,  ne   cannot   have  a  trade-mark   iu   its  prop.r  name.     Thus 


^im 


1). 


EQIII'Y   (ASKS    SIMI'LIFIEl). 


173 


liinking  they  arc  tlu' 
luity  will  oiijoin  tlu' 
IS   helil   in  tin-  Oap- 
uilty  of  fraud. 
:<  is  lUMiuircd  l)y  ox- 

iiiune  iiiiil  iipplifs  it 
cluu-iictcr,  will  iKive 
)tect.    The  prior  use 

only  been  for  a  very 
ilicks  with  tlio  word 
UMnl)cT,  iscil,  put  his 
\vm.  Loss  than  two 
o  stamp  Ills*  li(iuorii'i' 
as  al)lt!  to  onjoiu  his 
urt  which  ccrnntrd  the 

ncfiuirc  a  propi-rty  in 
;ind  requirinfi  antoce- 

U  was  not,  however, 
i  was  capable  of  being 

support  a  bin  of  this 
cd  to  the  j;oods  rijiht- 
i  t(>  wliich  it  is  applietl 
;  thirdly,  that  the  de- 
le  ptirpose  of  passing 
ict,  I2W.U.  777;10L. 
>p(Tty  in  a  trade-mark 
ictually  put  upon  the 
f  use  It,  and  obtain  the 
t.  -2  Ch.  App.  :W7. 
lay  be  the  subject  of  a 
said  an  Kn;;lish  judpe 
(1  a  fanciful  and  ridlcu- 
etter  it  is  for  his  busi- 

court  would  take  care 
le;  for  such  user  could 
iiitatins;  the  plaintiff's, 
itinj^  the  goods  nianu- 
ufactured  by  another." 
s  better  that  the  word 
lould  be  to  some  extent 

property  in  the  article 
,s  piMpir  name.    Thus 


"  paiMlllne  "  having  come  to  be  au  article  of  commerce,  it  has  been 
held  that  one  could  not  appropriate  the  word  as  a  trade-mark;  and 
the  same  was  held  of  "Cundurango  Ointment,"  ointment  being  a 
a  generic  term,  and  Cundurango  tlie  name  of  a  well-known  plant. 
But  a  person  may  apply  a  common  name  to  an  article  not  at  all 
descriptive  of  the  article,  and  which  word  has  been  applied  to  arti- 
cles of  oilier  kinds,  and  it  will  constitute  a  valid  trade-mark  —  as 
for  example,  "Excelsior"  Soap.  Uraham  v.  Bustard,  1  H.  and 
.M.  447. 


174 


KytlXY    CASKS    SlMl'MllEI). 


TRADE.^fAIn:S-^FAM^A^  NAMES  USED  WITH. 
OCT  JNTENT  TO  DECEIVE. 


MENKKIA    V.   MENEEI.Y. 

[1  llun,  IHIT;  •■,2N.  Y.427.] 
An.Uow  :u..l  Ivhvin  A.  M.-n'oly  wore  hell  ^nn^ 
t,„.o,s  iuTrov,  Now  York,  the  hus.noss  alter  the  de-Uh 
.,•  Andrew  heiug  cavrica  on  hy  Echviu  and  George  K. 
M.neely.  The  Meneely  hells  heca.ne  very  eele hrated, 
and  it  was  therefore  with  considerahle  d.sgust  that  the 
Hr.n  fon.Kl  out  o.ie  day  that  Clinton  Meneely  and  one 
Kimherlv  were  ahout  to  start  a  rival  bell  toundry    n, 

'r,„v       Hnt  it  was  not  long  nntil  tlu-  new  works  were  ,n 
n.Uhlast  and  the  hells  of"  Meneely  &Kin,h.rly      were 

,H.i„.^  cast  and  sold  to  any    one    that  wanted  a    hell 
The'.ld    tirni  tried  to  e.ijoin    the  use   of    the    word 
Meneely  by  the  new  tirn.,  hut  failed.     "  Kvery  man, 
..id  the  court,  "  has  the  absolute  right  to  use  h.s  own 
,,„nc  in  his  own  business,  even  though  he  may  inter- 
fore  <.r  i.ijure  the  business  of  an,>ther  person  bcar.ng 
Ihe  same  name,  pi-ovided  he  does  not  resort  to  any  ar- 
titioeor  contrivanee  for  the  purpose  of  producng  tic 
i.npression  that  the  establishments   are  identical,  o.  do 
,„Vthing  calculated  to  mislead.     Where  the  only  cc.n- 
,-u;ion  created  is  that  which  results  from  the  s.mdar.ty 
.,,•  the  names,  the  courts  will  not  interfere.     A  person 
,..,„„„t  „,,u,  ,,  tnule-mark  of  his  own  name,  and  thus 
,,,,„,„,,,.,,y  of  it  which  will  debar  all  other  per- 


i!). 


KQl'ITY   CASKS   8IMIM.I1IKI). 


17.^ 


.s^  USED  WITH- 
IVE. 


LY. 

.] 

sre  bell   niiimifao- 
iss  aftei-  the  death 
ill  and  George  K. 
i  very  celebrated, 
Ic  disL'Ust  that  the 
Meiieel y  and  one 
.1  bell  foundry    in 
new  works  were  in 
bKiniberly"  wore 
lat  wanted  a    bell, 
nsc   of    the    word 
"  Everyman," 
«rht  to  use  his  own 
mLdi  he  may  inter- 
ior person  bearing 
yt  resort  to  any  ar- 
io  of  producing  the 
are  identical,  or  do 
:here  the  only  con- 
from  the  similarity 
iterfere.     A  person 
wn  name,  and  thus 
lobar  all  other  per- 


sons of  the  same  name  from  nsing  their  own  names  in 
their  own  bnsiness." 

Meneclv  <•.  Mcneely  Is  an  interesting  case  ns  showinu'  that,  in  the 

case  of  us'ln^'  fan.ily  names  i>y  persons  entitle.l  to  use  t  "•">,     J^^ 

;^^wer  of  the  court  .•,.!  only  i.e  '"terposed  wlu-re  ti.ero    .as  I3  . 

nud  or  de-eit  practised,  or  wl.ere  some  fraudulent   desice  has 

;::    c^loyed  t^  mjure  the  husiness  of  """th...  and  .mpose^n 

,ho  public.    This  case  <loes  not  conllict  with  Croft  v.  D:  > ,  for  tl  c 

no  P      is  the  same  In  both,  for  in  Croft  ..  Day  the  dofeudanis 

e  not  euoMH-d  from  usin«  their  names  at  all,  but  In  so  us.ng 

;,;;:  i"  conm-ction  with  i>ottiesuud  labels  like  the  plaintiffs  as  to 

deceive  tlie  public. 


iTt; 


icyunv  CASKS  mmi'luiicu. 


STATEMEXTS  AS   TO  FORMER   EMPLOYMENT. 


GLENNY  V.  SMITH. 

[2  Drew.  &  Sm.  +71!.] 

One  of  the  cMoplovecs  of  Thresher,  Glenny  &Co., 
hosiery  and  shirt  n.ukers,  of  the  Strand,  London    who 
rejoiced  in  the  unromantic  name  of  Smith,  left  their 
sc-rvico  and  opened  a  shop  for  imnself  on  another  street 
in  the  same  citv.     Over  the  door  of  his  shop  he  put 
Lis  own  name  -  Frank  P.  Smith,"  but  on  the  awn.njr 
,nd  doors  he  added  the  words  "  From   Thresher    A. 
(Jlenny,"   being  careful  to  put  the  w   rd  -  from'     m 
very  small  letters,  not  likely  to  attract  attention.     It 
Hl.o  appeared  that  in  the  middle  of  the  day,  when  the 
uvnin-  was  let  down  to  keep  out  the  sun,  it  entirely 
'.hut  ort-  from  view  the  name  of  Mr.  Smith  over  the 
door      Under  these  circumstances  it  was  not  strange 
that  several  customers  went  into  Mr.  Smith's  shop  m 
the  belief  that  it  was  a  shop  of  Thresher  &  Glenny. 
This   somewhat   incensed  the   latter  firm,   and  they 
applied  to  the  Court  of  Chancery  to  have  Mr.  Smith 
restrained  from  using  their  names  in  this  way.     Mr. 
Smith  replied  that  he  had  intended  no  deception,  and 
had  even  gone  so  far  as  to  instruct  his  clerks  not  to 
permit  customers  to  buy   under  the  i.npre.sion  that 
they  were  buying  from  Thresher  &  Glei-  -  -'-.nere 


EgCITY   CASKS   SIMl'LIKIKI). 


177 


■:u. 


EMPLOYMENT. 


r,  Glenny  &Co., 
lid,  Loiulon,  who 

Smith,  left  their 
'  o\\  tiiiothor  street 
[   his  shop  ho  put 
imt  on  the  iiwnin<r 
roil   ThroshiM-    & 
w  rd  "  from"  in 
ract  attention .     It 
the  day,  when  the 
the  sun,  it  entirely 
r.  Smith  over  the 
it  was  not  strange 
I'.  Smith's  shop  in 
hresher  &  Glenny. 
er  firm,   and  they 
to  have  Mr.  Smith 
in  this  way.     Mr. 

no  deception,  and 
t  his  clerks  not  to 
he  i.nprejsion  that 

Glei<  -There 


is  no  question,"  said  tlio  Vioe-C^hauteilor,  in  deciding 
the  case,  ••  l)ut  that  if  aniaii,  having  heen  in  th(?  em- 
ployment of  a  firm  of  reputation,  sets  up  in  i»u><iness 
for  himself,  ho  has  a  right  in  any  way  in  which  he 
thinks  fit  (provided  he  does  not  «le<'(ive),  to  inform 
the  public  that  ho  has  heen  in  such  eniploymeiit ,  and 
in  tliat  way  to  appropriate  to  himself  some  of  the 
benefit  arising  from  tho  reputation  of  his  former 
cmplovers.  But  in  so  doing  ho  must  take  special  can* 
that  it  is  done  in  such  a  wiiy  as  not  to  mislead  the 
public  to  the  detriment  of  his  former  employers,  ll, 
iloes  not  signify,  for  the  piu'poso  of  the  plaintiir'^  right 
to  relief,  whether  tho  defendant  has  acted  with  a  fraudu- 
lent intention  or  not ;  it  is  enough  if,  even  without 
any  unfair  intention,  he  has  done  that  which  is 
calculated  to  mislead  tho  public,  *  *  *  and  it  is  lu.t 
the  question  whether  the  public  generally,  or  even  a 
majority  of  the  public,  is  likely  to  be  misled  ;  liut 
whether  tho  unwary,  the  heedless,  the  incautious  p(»r- 
tion  of  the  public  would  he  likely  to  \n'.  misled." 

Tested  by  those  rules,  tho  court  came  to  tho  con- 
clusion that  on  the  evidence  in  the  case,  deceptiiui  was 
probable,  and  enjoined  Mr.  Smith  from  using  the  firm 
name  as  he  had  been  doing. 

Ttie  law  on  this  subject  is  so  well  laiil  down  in  the  above  case 
that  no  further  explanation  Is  necesnary  here.  The  case  is  inter- 
esting insliowing  tliat  the  intention  of  tlie  defumhint  to  deceive  tlie 
public  is  not  the  gist  of  the  relief,  but  that  the  probability  that  the 
public  will  be  deceived  is.  A  man  who  has  been  employed  by  a  firm 
t)f  reputation,  may  use  their  name  for  the  purpose  of  informing 
the  public  tliat  he  comes  before  them  recoinraende<l  by  the  fact  of 
liaving  been  employed  by  an  establishment  of  admitted  reputation, 
but  when  he  advertises  this  by  signs  on  his  store,  he  must  be  very 

lit 


178 

careful 
Tlio  safe 
"  formerly  of 
late  rtrin. 


K.^l  ITY    <A»1>^   HlMI'l.iriKl). 


,.,.,  ,„  h.i  it  be  suppose.l  that  Ihcy  are  the  proprietor-. 


mm 


I). 


,re  the  proprletoM. 
from,"  "late with," 
,vlth  tho  Bttme  of  the 


PART    II. 


Constitutional    Cases 
Simplified. 


gMMLJ 


iiiM 


CONSTITUTIONAL  CASES. 


CHAPTER  1.— GEXEKAL  PKINCIPLES. 


GENERAL  LIMITATIONS  IN  CONSTITUTION  DO 
NOT  APPLY  TO  THE  STATES. 


BABiiON  V.    THE  MAYOR  OF  BAiyilMOllE. 

f7  Pet.  '.'l!!.] 

Mr.  BiiiTon,  of  Baltimore,  was  the  owner  of  a  wliari" 

which   derived    its    popularity  from  its  eiijovin^  the 

deepest  water  in  the  harbor.     This  reputation ,  however, 

was  destined  to  bo  short-lived,  for  the  city  in  <i;rad- 

ing  some  streets,  directed  from  their  accustomed  ways 

several  streams  of  water  which  carried  down  to  Mr. 

Barron's  wharf  so  much  mud  and  sand  as  to  render 

the  water  so  shallow  that  no  more  vessels  were  able  to 

conie  there.     When  Mr.  Barron  asked  to  be  c<)mi)en- 

sated  for  his  lost  wharfage  dues,  the  city  pointed  to  its 

charter,  which  justified  it  in  doing  exactly  as  it  had  done. 

Then  Mr.  Barron  went  to  law  alleging  that  the  city  had 

taken  his  property  "  without  just  compensation,"  and 

that  as  the  United  States  Constitution  prohibited  this 

very  thing  in  express  words,  the  city  must  pay  him. 

It  was  held,  however,  that  as  it  was  the  State,  and 


\ 


1M2  (oNsriTiTTioNM.  f>>'-^  siMiMi.  ir.n. 

•Lndia  not  apply.     Tho  genon^  lin  tnt..,n.  con- 
t,i,,ainthoUnit.a  State.  Cc,nHtUut.on.tluM.<us.Kl 
J;;;;,,,,,,,,  ,.  U.-  National  goven.m.nt  and  dul  not 

siDplv  to  tli»>  Slatosat  all. 

tl,a»,1horli.ht<.f  .IH-  poop,  to  k     p       I  b  .  ^    ^^^^^^^^^  ^^^ 

..i.ures  of   ..-■.•sons   b..u..H    -apcr^;^^^^ 

,,  ..„..  au..  p;-;;;^^:^^;t;  '.!;:;.'  uo  .>-^->  ^>>''-'  '>••  "^'" 

""■""T;.!    a      1^     r    .tlxr.vlso  Infu.nous  cH-n.  unU-.s  ou  a 

,.0H..,U.ne«t  or  ,n.Uc,.n..U  ;;  ^f.^^  wLln^  actual  service 

'"  ^'"  '"'r'  ""r^ub;^  :.-  •  1 1  "o  person  .haUbe  Hubject  f-r 
in  time  of  war  or  public  '"  "-^  '  .  „ly  of  life  or  limb,  nor  be 
,Ue  same  offence  to  bo  put  j'*^       ,1  ^^^^  ,,,.,..t  l.in.self -.  nor 

he  .leprlve.l  of  life,  Ub.lty  "^ J'    '       '  ,  j.     ^g^  „.it;,out  jUHt 

U.a  private  l'-P--^y ''^^f  "?  .^^.^ '"^^^^^^^  the  accused  shall 

^''""T^r;:'a  :  "  P^;  "i  Xtri^'  by  a^  impartial  ju..  of 
.„joy  the  riu.-t  of  •  ^1"^  •  ^  ^^.j„  the  crime  sluill  have  been 
t„«  state,  and  la  ^"«f  ^'"^ '"''jJJ^^rt  of  the  nature  an.1  cause  of 
.onnnitted,  and   must  be  Informea  oi    i  „.itnesses  against 

,„„  n,..„sa,l.n,,  and  must  be  ^^""t'^"^'^''  f .^obtl In  h  s  own  wit- 
"""•  ""•'  "''^^'  '"^T  ^"ra^r:  "utTru  his  defence 
nosses,   and  ^^^^^  '^''''''^^''XT^ZZs^-'^  ^-  suits  at  common  law. 


.11  ir,i>. 


CONS  linn.  >NAI,    (ASKS    SlMlM.lllKI.. 


1  h:\ 


llio  art,  tlieltfo- 
liiuitatioiiH  i'<»n- 
1,  till!  court  siiiil, 
Hint  uud  ilitl  x^'t- 


iinfmii  ninny  pow^Ts 
my  liinitHllKns  to  its 
I  ill)  form  of  rellRlon 
•Ualoube  problblti'd ; 
nil  not  l>o  ivt)rl(li!i'tt ; 
urmM  shivll  not  bo  In- 
;iict'  bt'  (nmrlurttl  In 
ii>llini")f  war,  <xci'pl. 
<..nublc  sfiirchcs  ami 
ts  shall  not  bo  nmtle  i 
jiiblociiUHf,  supported 

0  to  be  Hcnrched  ami 

1  ptrson  Hhull  be  laid 
•us  criino  unless  on  u 
xci'pt  In  rtiM'S)  urlsln?i 
vhun  la  actual  service 
on  Hhall  be  subject  for 
of  life  or  limb,  nor  be 
sa;;aln»t  himself:  nor 
ul  due  process  of  law ; 
lubllc  use  without  juflt 
ions,  the  accused  shall 
jy  an  Iniparlial  jury  of 
crime  shall   have  been 
i  nature   anrl  cause  of 
ti  the  witnesses  ajjainsl 
,0  obtain  his  own  wil- 
lounscl  in  his  defence ; 
1  suits  at  corani«ni  law, 
I'd  twenty  dollars,  and 
nor  excessive  lines  im- 

be  inflicted. 

ut  as  dccidlna;  that  these 

ernment  only,  and  do  not, 
aid  Chief  Justice  Mau- 
dilished  liy  the  people  of 


the  l-niUd  Slates  for  themselves,  for  their  own  ,;overun.ul    and 

Hueh  liin  lilt  ous  ihkI   ic^li  li  lions  on  iii«    i  i'„i|,,,i 

Xlernment  us  its  jud.tuent  dietal.d     ••;^'-.  ''7:^;;;         „  ;^     I 
States  franu.d  such  a  «overnment  lor  ihe  In  ted  ^^^  ■" 
„o>..d  besi  adi.pte.l  lotlulr  situation,  and  be>t  cal(  nl.it.  .1  10  pro 
I    .      Ill  rests      Th..  |.ow.-rs  they  eonferre.l  on  this  «overn- 
:Z    :       ;"    i;;;erci!e.l  .:y  ItseU ;  am,  the  H.ni.an.n.s  on  power, 
V,    es.ed  in  (l.merai  t.-rms,  are  natunill>,  a.ui  we  think  ne. .    - 
.  i        .         .    bU-   -o  tl-  U".vern,nen,  created   by  the   Insirumen 
X^a;;;iiniitatio.,sofpower.nin.ed.nt...^^^^^ 

"-  of  distinct  «oveni.n..n.,  ';;;;-^;^^;:::,;.,..,„s  restrain- 
;:;rr;:';::.ie«enerai«:.;eUnt.m..asapp.i..a..le.^ 

=::rs:.r,r:;i^^^^^^^ 

protect  a  person  against  state  ie;:islat. on.  ,,  ,.,.,  conslitn- 

'    There  ar...  however,  certain  U.nitatlons   n  tl,e  1-  ••  a  1. 

,ion..n  the  powers  of  the  Slates.     Thus,  it  .s  declared  •      ' 

;.at  no  Statl  shail  enter  into  any  treaty,  alliance   or  ^on     '.       U, 

.rant  letters  of  nnirnne  and    r..prisal.  eo.n   inoney       '!^^^         ; 

"n.dit,  make  anything  but  ,oid  and  silver  coin  a  .nde         P  J^       > 
.1  .i,.l  ts   i.ass  any  l>ill  of  attainder,  'V  poKfJodo  law,  01  1.  w  Unpaii 

;:  'r  :.liaul  Of  contracts,  or.rant  ^^ -;:;;;;;^  ^^  -: 
tl.atno  State  shall,  without  the  consent  of  <  o,-.'.  ss,  '^f  "">       ■ 
or  duties  on  imports  or  expoi-s,  e.xe.,.t  wbat  ma>  "'     '^    "J^^^ 
„ e.  ssarv  for  executing  Its  inspedUm  laws,  or  lay  uny  '  >'  y  "^^^ 
Ja    ke^p  troops  or  ships  of  war  in  time  of  peace,  enter  into  any 

;  ;m;:t «;  :!mpaet  wui .ti....-  State  or  ^^:^i^ ^;;^:j;:;^^ 

;;;— J;;.:2:;r:f:r^^i;;e■- 

o  the  constitution,  certain  other  limitations  are  placed  up.n      1. 

.    er  of  the  States.     -'No  State  shall  -'^l^^.  "^-J^^:,,      / 
which  shall  abridge  the  privileges  or  i.nmnn.tu.s  >f  -  '-">  ^  ^       ; 
United  States,  nor  shall  any  State  deprive  ^*"y  l^^'^""  °    "  ^Z '"^ 
erty,  or  prope^y   without  due  process  of  law,  nor  "  '• '       '  --^  "'' 
so.   within  its  jurisdiction  the  equal  protection  of  the  laws 


184  CONSTITUTIONAL   CASES   SIMl'I.lFlKl). 

AS  to  all  the«e  latter  provision.,  the  Federal  courts  will  conslcier 
the  ,ue«Ln  .vUctUer  a  SUte  law  coaflicts  with  »-.  and  .f  ^t  . 
foJd  to  do  80  will  declare  It  uucoustltutloual  and  void. 


SIMl'I.lFIKl). 

ederal  courts  will  consider 
icts  with  them,  and  if  it  is 
tloual  and  void. 


CONSTITirnONAL   CASES   SIMPMKIKl). 


ls.-> 


IMPLIED  powers! 


McCUTXOCH  V.  THE  HTATE  OP  MAKYI.AND. 

[1  Wheat.  :U(J.] 
About    the    veav    ISUS,     Congress    estal.lishul    u 
United  States  Bank,  for  the  purpose  of  a^ss.stinji  the 
government  in  the  management  ..f  its  finances.     Then- 
was  great  opposition  to  the  measure,  and  the  questum 
of  the  f;onstitutionality  of  such  an  act  came  at  last  b.- 
fore   the    Supreme  Court  of  the   United    States    lor 
decision.     The    bank    contended    that,    although    tne 
Constitution  did  not,  in  express  terms,  authorize  Con- 
.n-ess  to  establish  a  national  bank,  yet  it  hud  given  il 
power  to  borrow  money,  collect  taxes,  and   pay  the 
debts    of  the   nation  ,1  and    had  expressly  authonzc.l 
Con^^ress  "  to  make  all  laws  which  shall  be  necessary 
and  "proper  for  carrying  into  execution  the  toregomg 
powers,"^  and  this  it  argued  was  authority  enough. 
•  The  enemies  of  the  bank,  on  the  other  hand,  tooic  the 
..round  that  -necessary"   meant  indispensable,  and 
"sail  the  acts  named  coul.l  l>e  performed  without  a 
bank,    the  creation    of  the  United  States    Bank  was 
unconstitutional. 

The  court  held  the  a. .  ;alid,  on  the  grouu-l  that  such 
iui  institution  v.as  a  legitimate  means  ..f  carry.ng  out 
the  <reneral  powers  giv.-u  to  Congress,  and  that  the  de- 
.r,.ee^.f  its  necessity  was  a  question  for  the  Lc  gislature 


Const.  Art.  I,  sect.  8. 


2  Const.  Art.  I,  sect.  18. 


ISC, 


CONSTITITIONAI,   CASKS    SIMIM.IFIKI). 


aiKl  lu.l  foi-  th.'  .■..uit.     "  Wo  iuimit,"  .sui.l  Cluct  .lus- 
tier Maksham.,  "  as  ill!  must  admit, that  the  pcwcrs  ol 
the  .n.vrnu.uMit  aiv  limito.l,  ami  tl.at  the  limits  arc  not 
1o  \h'  t.aiisr.Mi.U-d.     Hut  we  think  the  sound  construc- 
tion olthc  Constilutiou  must  allow  the  National  Legis- 
lature  that  tliscretion,   with  respect  to  the  means  hy 
wiiich  the  powers  it  confers  are  to  he  carried  into  exe- 
cMtinii,   which   will   enable  that  body  to  perform  the 
\u"h  duties  assiiincd  t.)  it,  in  the  manner  most  beneh- 
ciid  to  the  people.     Let  the  end  be  legitimate,  let  it  be 
williin    the    scope  of  the  Consitution,  and   all    means 
which  arc  appropriate,  and  which  are  plainly  adapted 
to  that  eml,  which  are  not  prohilntcd,  but  consist  with 
til,,  l.tter  and   spirit    of  the  Constitution,  are  consti- 
tutional." 

Th.  fjover..u.-nt  of  tho  llnile.l  Slates  is  ouo  ..f  lUniUHl  powers, 
It  has  strictly  no  powers  except  such  as  are  txiven  to  it  in  (lie  Con- 
stitntio.1  <.f  ti.e  t'nite.l  States.  Herein  it  differs  from  'l""  ^^it^jS 
which  have  all  powers,  except  such  as  h.ve  been  conce.le.l  by  he 
,..ople  to  the  fieneral  Kovernmeut.  "The  government  of  the 
l-nited  States  eau  claim  no  powers  which  are  not  gfanted  to  It  by 
the  Constitution;  an.l  the  powers  actually  ^-ranted  must  be  suchas 
are  expresslv  u'iven  or  -iven  byneeessary  impHeation."  Mart.n  «. 
llu-iter's  Lessee,  1  Wheat .  304.  When  any  act  is  attempted  by  the 
National  government,  authority  for  that  aet  must  be  found  within 
the  C;oustitutiou.  Two  imi.ortani  principles  have  been  Incorpor- 
ted  on  this  Kti"*-'""'''  '■"'^'• 

1  Within  the  scope  of  the  functions  assljined  to  it,  over  the 
subjecas  committed  to  Its  care,  the  power  of  the  National  govern- 
monl  is  absolute  and  supreme. 

-  The  Constitution  does  not  descend  to  a  minute  description  of 
the  powers -iven  to  the  National  government;  it  uses  only  -eneral 
urn's  It  conUin.s  a  list  of  the  grand  objects  and  purposes  which 
are  committed  to  It,  l>ut  does  not  attempt  to  detlne  all  the  means 
and  methods  bv  which  those  objects  may  be  attained,  but  leaves  it 
to  (A.n-'rcss  to'  adopt  Its  own  means.  A  few  instances  and  illus- 
trations of  this  will  surtlce.    Congress  is  authorl/.ed  to   borrow 


IMIKIKl). 

,"'  .s:ii«l  ChictMiis- 
lliat  tho  powers  of 
;  the  limits  aro  not 
le  soiiiui  construc- 
lio  Natioiiiil  Lt'gis- 
t  to  tlic  iiunuis  l»y 
11  carried  into  exe- 
ly  to  perform  tlu' 
iinner  most  bcneti- 
eiritimate,  let  it  be 
)ii,  and  all  moans 
It!  i)lainly  a(l;ii)te(l 
(1,  1)111  consist  with 
itution,  are  coiisti- 


CONSTITITIONAL   CASKS   SIMriiriEl). 


is: 


topography  of  the  O.ad  Sea."     Po.neroy  Const.  L.  IM, 


ono  of  liniiti'il  powers, 
■  iiivi  n  111  it  in  tlio  Con- 
difftTs  from  the  States, 
e  been  coiiceiletl  by  the 
'he  jjoveriiuu'iit  of  the 
ire  iii't  "{rallied  to  It  by 
■granted  must  be  Miehas 
iiplieation."  Martin  e. 
act  is  attempted  by  tlie 
•t  must  l)e  found  within 
f.-s  liave   been  Incorpov- 

issifined  to  It,  over  the 
of  llie  National  ^overn- 


a  minute  description  of 
int;  it  uses  only  >:eneral 
ects  and  purposes  which 
t  to  define  all  the  means 
)e  attained,  but  leaves  it 

few  instances  and  illus- 
s  authorized  to   borrow 


188 


coNi!«Trn'noNAh  cases  simi'lifikd. 


OII.VPTKU  ir.  — THE   POWER  OF 
TAXATIOX. 


EXTENT  OF  THE  TAXING  POWEli. 


PllOVII>KSCE   HAXK  v.  1UI.I^IXGS. 

[+  Pet.  514.] 

Ill  the  year  ITS* I  tlio  Kliodc  Island  Legislutufc 
chaiteivd  the  Piovidenco  Bunk  to  cany  on  the  bank- 
ing bushicss  as  ii  corponition  in  the  State.  In  1822 
the  Logislaturo  pas.sed  an  act  imposing  a  tax  on  every 
bank  in  tlio  State  cxcepb  the  United  States  Bank. 
Tlie  Providence  Bank  resisted  this  tax,  and  attenii)ted 
to  show  the  Suprenie  Conrt  of  tiio  United  States  tliat 
it  vvas  unconstitutional. 

"  Tlic  State,"'  argued  the  bank  lawyer,  "  gave  us  a 
charter  to  carry  on  the  banking  business.  True,  no 
promise  was  made  in  the  charter  that  we  should  not 
be  taxed  ;  but  we  claim  that  it  wad  an  implied  contract 
that  it  would  pass  no  law  which  would  interfere  with 
our  operations.  Now,  if  the  Slate  may  tax  us,  it  may 
compel  u>  to  close  our  doors,  for  it  may  tax  us  to 
such  an  extent  that  we  cannot  protital)ly  carry  on 
business  any  longer." 

"  So  it  may,"  answered  the  court,  "  for  such  is  the 
extent  of  the  taxing  power  of  a  State.  The  power  of 
taxin«»'  operates  on    all  persons  and    property.     It  is 


I'LIFIEO. 


OWEK  OF 


H  POWER. 


</ 


[IL.I^IXGS. 


[s1:ur1  Legislutui-c 
Ciiny  on  the  bank- 
ic  State.  In  1822 
in}X  a  tax  on  every 
itod  States  Bank, 
tax,  and  attenii)ted 
United  States  tliat 

awyer,  "  gave  ns  a 
usiness.  True,  no 
,hat  we  should  not 
an  implied  contratt 
ould  intert'ore  with 
may  tax  us,  it  may 
•  it  may  tax  us  to 
)rotital)ly   carry  on 

•t,  "  for  such  is  the 
ate.  The  power  of 
id   property.     It  is 


(ONSIITITIONAL    CASIS    SI  Mri.IKIKD. 


1  S'J 


.ranted  l.y  all  for  the  iHMU.rtt  of  all.     It  resuLs  u.  tin 
;,vernnu...t  as  a  part  of  itself,  a.ul  need  not  be  reserve.! ,     . 
where  property  of  any  descriptiou,  or  the  r.^d.t  to  use 
it  in  any  manner,  is  f,n-anted  to  individuals  or  corpora  e 
bodies.     Kvery  person  «u.st  bear  his  porl.o.i  of  the 
p,.blic  bunleus  ;  what  that  portion  shall  be  nu.st  b. 
determined  by  the  Legislature,  whose  discretion,  even 
when  abused,  cannot  be  corrected  by  the  courts. 
And  so  the  bank  had  to  pay  the  tax. 

Tax.s  .IS  some  philosopher  has  re.narkod,  an-  t'";  P*'"'^'^;;; 
which  poonle  have  U,  pay  for  helnj;  too  fond  of  fjlory.  The  power 
naVis  an  incident  of  sovereignty;  it  resides  in  every  govern- 
^eit  or'if  it  were  not  so,  no  govorn.nent  could  exist  very  long, 
for  it  would  be  without  power  to  raise  money  for  itB  -vn  nja  n^^^^^^ 
ance.  And  (with  some  exceptions,  which  w.U  be  stated  below  , 
the  extent  of  Us  exercise  Is  unlimited;  If  the  governmen  ,  tl^ 
people-  representatives,  decide  to  levy  a  tax,  t'-  -"o-t  1^ J- 
Tre  W  in  their  discretion,  and,  no  matter  how  onerous  .t  may  be,  ther. 

io  powe  in  the  courts  to  help  a  citizen,  though  his  last  dollar 
may  be  Uk.n  from  him  under  tn.s  guise.  "The  power  of  tax.ng 
le  peopTe  and  their  property,"  said  the  greatest  of  Ame.^an  C  ne 
lustices.  "is  essential  to  the  very  existence  of  government,  and 
mav  be  legitimately  exercised  on  the  objects  to  which  .t  «  appIU- 
Tie  to  he  utmost  extent  to  which  the  government  may  choose  to 
^a  ry  it  The  only  security  against  the  abuse  of  this  power  Is 
found  n  the  structure  of  the  goverment  Itself.  In  Imposing  a  tax^ 
r  Legislature  acts  upon  Its  constituents.    This  Is  in  gen.r  >    a 

l^mclent  lurity  against  erroneous  and  OPP-^^^  ^^^g  th; m- 
1     ♦v.urofnrp  fTive  to  thclr  government  a  right  ot  taxing  mem 

^em  dy-when  the  next  election  comes  on  they  can  retire  the  r 
representatives  who  have  put  the  burden  on  them,  and  send  men  to 
the  Legislature  who  will  vote  for  Its  repeal. 


190 


CONSTITUTIONAL   CASKS   SIMFLIFIKU. 


The  exceptions  to  this  general  rule  are :  — 

I.  When.  th>'  t;onstltution  prescribes  a  limit  to  the  exercise  of 

till'   powi-i. 

II.  WlKMv  Mil-  tax  is  not  iinpos.nl  for  a  pnblic  object. 

III.  Wliere  tlic  Slate  I'.as  reliuqiiishecl  its  right  by  contract. 

IV.  Where  the  property  is  beyond  its  jurisdiction. 

1  iVhere  ihr  CunsiUnli  .n  prescribe*  a  limit  to  the  exerci»f.  -/ 
t„r  'nown:  The  people  have  not  always  been  willing  to  trust 
this  unlimited  power  to  the  goverumeut.  Therefore  . a  many 
of  the  Sute  Constitutions,  as  In  also  the  Constltulioa  of  the  Ln.tcd 
States,  it  is  ,>rescribe.l  that  tl>e  Legislature  shall  not  tax  beyond  a 
certain  a.nount,  or  only  for  certain  purposes.  If  the  go^H.■rnu.ent 
nasses  a  law  conflicting  with  these  constitutional  i.mltations,  the 
courts,  in  a  case  of  the  kind  being  properly  brought  before  then, 
will  declare  the  law  void,  an.l  will  prevent  the  tax  «'•'-"  b^!"","'''- 
leeted  The  Constitution  of  the  Cnited  States  contains  limitations 
on  both  the  powers  of  Congress  and  the  States  in  respect  to  taxa- 

tion,  viz.: — 

Vrt  I  sect  VIII.  "  Congress  Bhall  have  power  to  levy  and 
collect  tlxes,  duties,  imposts,  au<l  excises,  to  pay  the  debts  and 
provide  for  the  common  defence  and  general  welfare  of  the 
United  States;  but  all  duties,  imposts,  and  excises  shall  be 
uniform  throughout  the  United  States. 

Art  I  se-t  II  ,  §  3.  "  Direct  taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  in  this  Union 
according  to  their  respective  numbers.     See  Ilylton  v.  U.  S., 

'"In'  I  sect  IX  ,  H:  "Nocapitotion  or  other  direct  tax  shall 
be  laid,"  uuless  in  proportion  to  the  census  or  enumeration 
hereinbefore  directed  to  be  taken. 

Art.  I.,  sect.  I.K.,  §  5.  «•  No  tax  or  duty  shall  be  laid  on  articles 

exported  from  any  State. 

Art.  I.,  sect.  IX.,  §  G.  "No  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of  one  Stale 
over  those  of  another;  nor  shall  vessels  bound  to.  or  from  one 
SUte,  be  obliged  to  enter,  clear  or  pay  duties  in  another.  See 
Brown  v.  State  of  Maryland,  Almy  i'.  State  of  California  and 
Woodruff  r.  Parbani  post,  p.  1!»". 

Art  I  ,  sect.  X.,  §  1  "  No  State  shall,  without  the  consent  of 
Congress,  lay  any  iinposts  or  duties  on  Imports  or  exports,  ex- 


•LIKIKD. 


lit  to  the  exercise  of 

lie  object. 

iglit  by  contract 

lilctlon. 

mit  to  the  fxercitr.  '/ 
icfii  willing   to    trust 

Therefore,  ia  inuny 
Hltulloa  of  the  United 
hall  not  tax  beyond  a 
39.  If  the  government 
itional  limitations,  tin- 

brought  before  them, 
he  tax  from  being  col- 
es contains  limitations 
.tes  in  respect  to  taxa- 

lave  power  to  levy  and 
!S,  to  pay  the  debts  and 
general  welfare  of  the 
.  and  excises  shall  be 


rONSTlTl'TIONAI-    CASKS   SIMI'LIFIKI). 


r.M 


cept  what  may  be  absolutely  necessary  for  executing  its  insp.'c- 

tlon  laws.  ,  .     , 

\rt  I.  sect.  X.,  §  ;i    "  No  State  shall,  without  the  conicnt  of 
(■(mgress,  lay  any  duty  on  tonnage."       » 

II  Where  the  tar  is  not  imposed  fur  a  i>Hl>lir.  ol.krt.     For  an  in- 
stance of  a  lax  of  this  kind,  see  Loan  Association  r.  Topeka.  y.o«f, 

p.  1 ;»'.'. 

III  Where  the  State  h,w  relinquishrd  its  right  hy  contraet.  This 
principle  is  .liscussed   and  illustrated  in  the  sub^ciuent  chapter  on 

PHOI-KKTY  UUillTS. 

IV  Where  the  property  i,  beyond  itx  juriMliction.  "  The  authority 
to  tax,"  it  has  been  ..aid  by  the  Supreme  Court,  -extends  o  ail 
persons  and  property  within  the  sphere  of  Its  terr.toriai  jurisdic- 

I  ,n  •  *  »  But  where  there  is  jurisdiction  neither  as  to  person 
or  property,  the  imposition  of  a  tax  would  be  ultra  vires  and  void. 
If  I  Legislaiure  of  a  State  should  enact  that  the  citizens  or  property 
of  another  State  or  county  shouUl  bo  taxed  in  the  same  manner  as 
Ip^  sons  and  property  within  its  own  limits  and  subject  to  .ts 
authority  or  in  any  other  manner  whatsoever,  such  a  law  would  be 
ts  much  a  nullity  as  if  in  conllict  with  the  most  explicit  constltu- 
tlorUnhlWt  on  Jurisdiction  is  as  necessary  to  valid  legislative 
„su  varjudiclal  action."     St.  Louis  ..The  Ferry  Co.,  U  Wall. 


shall   be  apportioned 

included  In  this  Union 

1.     See  Ilylton  i'.  U.  S., 

or  other  direct  tax  shall 
census  or  enumeration 

y  shall  be  laid  on  articles 

:e  shall  be  given  by  any 

i  the  ports  of  one  Stale 

is  bound  to,  or  from  one 

duties  in  another.     See 

State  of  California  and 

1,  without  the  consent  of 
I  Imports  or  exports,  ex- 


iMHaHitfi 


lit-' 


CONSTlTrTIONAI,    CASKS    SIMIM.IKIKD. 


TAX  AfUST  HE  FOR  PVULW  PURPOSE. 

LOAN  ASSOCIATION  v.  TOPEKA. 

[•JO  Wall.  tiS,-).] 
The  City  of  Top.'kn,  Kansas,  ..htainetl  aat.ority  from 
tl,..  Lo.risialuro  to  rssuo  l).)n.ls  to  encourago  tlie  ostal)- 
li.hnumt.  of  nianufactuivs  within  its  limits.     A.i  iron 
work,     company    attnictcHl    by    tlieso     inducemonts 
estahlished  its    works  in  Topeka,  an.l  to  it   the  city 
issnc.l  |1()0,()()()  of  hon.ls  as  a  honns.     The  company 
iHM^an  to  lo..k  npon  a  Kansas  city  as  a  pleasant  com- 
,„;^„itv    to    live    among;  hut,    alas,    everything   was 
d.angcl  when,  an  action  being  brought  on  one  of  these 
homls,  it  was  diHided  that  the  law  under  which  they 
were   issned    was    unconstitutional.       The  court  said 
that    -ivin.'    the    city  power  to  donate  its  bonds    to 
mannl^u-tories,  was  the  same  as  giving  it  power  to  tax 
the  inhabitants  for  that  purpose,  for  only  by  a  tax  could 
the  bonds  bo  paid.     But  a  valid  tax  must  be  imposed 
for   some  public  object -t.  e.  an   object  vvit Inn   the 
purposes  for  which  governments  are  established.      1  he 
t,vin.r  newer  cannot,  therefore,  bo  exercised  in  aid  ot 
,,,'tonniscs  strictly  private  for  the  benetit  of  individ- 
uals, although  in  a  remote  or  collateral  way  the  local 
public  may  be  beneHlcl  thereby. 

T..  justify  the  exercise  of  tl.e  ta:clng  power  it  is  absolutely  ncces- 
sarv  tlat  tlL  expenditure  which  it  is  iutended  to  meet  «ha  1  be  for 
son".e  public  service  or  some  object  which  concerns  he  publU. 
welfare       That  tlie   public  will  be  iucideutally  benefited  l.   not 


IM.IKIKD. 


;  ri'itPOSE. 

DOl'EKA. 

ned  uut.'ority  from 
icourasro  bl»e  cstal)- 
s  limits.     An  iron 
li«so     inducement  3 
iiiid  to  it  the  city 
lis.     The  company 
IS  a  pleasant  com- 
s,    everythinij;   was 
i<d»t,  on  one  of  these 
under  which  they 
The  court  said 
i»nate  its  bonds    to 
'ing  it  power  to  tax 
•  only  l)y  a  tax  could 
IX  must  be  imposed 
1    object  within    the 
•e  established.     The 
!  exercised  in  aid  of 
!  benefit  of  individ- 
ateral  way  the  local 


CONSTITUTIONAL   CASKS   SIMIM.IKIKD. 


lii;; 


enough,  especially  where  the  liicUlentiil  beiiellt  is  only  wlml  tlu! 
public  may  receive  from  the  iniliistry  and  enterprise  of  inillviduuls. 
LcMin  Association  v.  Topekais  a  j{ood  example  of  a  tax  of  tlnsl<ind, 
and  two  cases  in  the  State  courts  also  furnish  apt  illustrations  of 
what  are  not  public  purposes  within  tliis  rule.  The  great  lire  in 
Boston  In  1872,  Ciinscd  the  Leiiisliiture  of  Massachusetts  to  pass 
a  law  anthori/iniJt  tlie  City  of  Boston  to  issue  bonds,  and  lend  the 
proceeds  onniortjjaKc  to  the  owners  of  land,  the  bulldinjjs  on  wldch 
had  been  burned.  The  purpose  was,  of  course,  to  assist  the  suf- 
ferers in  rebuilding  on  tiieir  land,  and  thus  to,  in  some  measure, 
benefit  tlie  whole  city.  Lowell  i\  Boston,  III  Mass.  4iV..  Tiie 
grasshopper  having  pretty  well  cleaned  out  the  crops  in  Kansas  one 
year,  tlie  State  authorized  counties  to  issue  bonds  for  the  purpost; 
of  providing  destitute  farmers  with  seed  for  the  next  sowing. 
State  r.  Osawkee  Township,  14  Kas.  418.  But  the  Boston  property 
holders  had  to  find  their  money  elsewhere,  and  the  Kansas  farmers 
had  to  buy,  beg  or  borrow  their  seeds;  for  both  statutes  were 
declared  void. 

\i 


ver  it  is  absolutely  ncces- 
ided  to  meet  shall  be  for 
ich  concerns  the  public 
leutally  beneflled  lo   not 


11)  I 


CONSTinrioNAI,    CASKS    SIMI'LIFIEO. 


WHAT  ARE  '^DIRECZ   TAXES. 


HYLTON  V.  UNITED  STATES. 

[SDall.  171.] 

Kx.ctlv  wimt   Mr.  Hvlton,  ..f  Vi.-inia,  founa  to  do 
.vi  U.  "^  hunarc.1  and  twenty-five  cavnage.s  (wluch  to 
cur   say.  ho  kept  "  exclusively  for  his  own  separate 
r     :itoJouttohireor..r..ec..^^^ 

I-      "x    w  .1  (uierv  wluch   it  is   naul  lo 

:-r  :;;■:.  ,!,c'u;;,;';uU..e  ™». ..»,.-..«- 

^       •  Tiittf  niie   year  betorc,  Congicss  ii.iu 

;r;::'::;;ioo::d;:;:;vL,es  in  the  u..ted  State. 

I;        o'eciuently  Mr.  Ilylton  ibnnd  that  keepn,g  one 
Zdred    a.Kl   twentv-fivo   carriages   was    more  of   a 
':::!;  Lu.  he  eouli  pay  for,  and  he  attempted  tod.s- 
nn.o  the  lecralitv  of  the  tax  in  the  courts. 
'  He  relied  on  a  section  of  the  Constitution  which  says 
th"   .^  dhtt  taxes  shall  be  apportioned  among  the 
t  ral  States  according  to  their  respective  numbei-s^^ 
,,d  he  claimed  that  this  carriage  tax  wa     a       duec 
Z  -     But  the  Supreme  Court  of  the  United  S  ate 
^  ,        •  *.  Thfl  direct  taxes  contemplated 

thought  otherwise.     "  i  ne  uueci  u.iai- 


^•i 


riKO. 


rOXSTITITTIONAI,   TASKS   RtMri.iriKI>. 


XES. 


TES. 


nia,  founil  to  do 
■iiiSCH  (wliich  the 
his  own  (S('i)iivate 
le  conveyimce  of 
t;h   it  is   hard  to 

was  theproprie- 
re,  Congress  hiid 
le  United  States, 
that  keeping  one 

was  more'  of  a 
,  attempted  to  dis- 

arts. 

titution  which  says 
noned  among  the 
>ective  nnmbers," 
ax  was  a  "  direct 
the  United  States 
axes  contemplated 


hy  the  Constitution,"  sai.l  Mr.  .lustioi!  Chask,  ••  arc 
only  two,  viz. :  a  capitation  or  poll  tax  .simply,  without 
regard  to  properly,  profession  or  other  cinMiinstance, 
and  a  tax  on  land. 

The  woni  "  taxi-s  "  fmbrnccs  ui  the  linposltloiiH  ina.l.-  upon  the 
person,  property',  ucciiputlon  (.r  prlvlle{;..H  of  tlie  pi'ople  by  the 
government  for  the  purpone  of  riilHin«  revenue.  "  Duties  "  and 
"imposts"  are  within  the  term,  but  for  greater  part Inilurity  they 
are  Renernily  applied  to  the  sums  of  monev  (hnian.l,.,!  bvllii-Bov- 
ernment  for  the  privile«e  of  Importln;;  or  expc.rtlnj?  mc  reliandise 
"  Kxclses"  are  also  "taxes,"  but  this  word  is  aiiplled  to  tlie  taxes 
hild  upon  the  manufacture.  sbU-  or  eonsumpliou  of  (oimnodlties 
within  the  country,  and  upon  licenses  i„  pursue  (•(■riiiiu  oc.u- 
pations. 

As  the  words  are  generally  used,  taxes  are  "  direct  "  when  they 
are  assessed  u|ton  the  persons,  property;  business  or  income,  etc", 
of  the  people,  and  are  "indirect"  when  they  are  levied  on  com- 
nmdltles  before  they  reach  the  consumer,  and  are  paid  by  him 
only  as  he  pays  a  higher  price  for  them  tlian  he  would  If  there 
were  no  tax.  The  former,  If  he  comes  within  Its  terms,  the  citi- 
zen cannot  get  out  of  paying ;  the  latter  he  may  escape,  if  he 
wishes,  by  abstaining  from  using  the  articles  whicli  have  been 
taxed. 

Hyltonr.  [Tnlted  States  decides  that  the  plirase  "direct  taxe  .  " 
in  the  Constitution  has  a  more  restricted  meaidng:  that  it  includes 
only  two  Jtlnds  of  taxas,  (1)  a  tax  on  land;  (2)  a  capitation  or 
poll  tax,  i.e.,  a  Qxed  sum  of  money  to  be  paid  by  each  person,  with- 
out reference  to  his  property  or  business.  Therefore,  if  Congress 
was  to  wish  to  levy  either  of  these  kinds  of  taxes.  It  would  have  to 
lirstflx  the  whole  amount  of  money  to  be  raised  in  this  manner, 
and  then  divide  it  among  all  the  States  in  proportion  to  the  number 
"f  Inhabitants  in  each.  As  this  would  be  a  work  Involving  a  great 
(leal  of  calculation  and  adjustment.  Congress  has  never  vet  tried 
this  method  of  taxing,  though  in  two  cases  since  Ilylton  v.  United 
states  was  decided.  It  was  contended  that  an  income  tax,  and  a  tax 
on  the  circulation  of  banks,  which  the  Federal  government  hail 
li'vied,  were  "direct  taxes,"  and  ought  to  have  been  apportioned 
imong  the  States.    Pacific  Ins.  Co.  v.  Soule,  7  Wall.  433;  Veazle 


111.;  CONSTITUTIONAL   {^ASKS   HlMI'l.IKH-.l). 

.        ,.<  «  w,ill  r.Tl      But  the   Supreme  Court  held  that 

Hank  v.  Femio,  8  Wall.  f>.i.i-     um.  v"  i  Constltu- 

rkage  case. 


irorae  Court  held  that 
mod  In  the  Constltu- 
rect"  tax  ia  tUo  Car- 


tONVIITlTIONAL   f'ASKH    SIMI'MKIRI). 


i!i; 


STATE  UL'TIh^  ON  IMl'iJliTS. 


imOWN  V.  STATK  OF   .>IARYI.AXI). 


[C'  Wheat.  4Ilt.J 

A  stilt  lit*'  of  Maryliiiid  r(>qiiirtMl  ull  impni'lers  of 
lorcign  «^<K)(l.s  hy  tlio  l)!il(',  piick.'ijri',  t'tc,  and  all  ollu'r 
lUTsons  Hell'mj^  the  saiiui  hy  wholesale,  hale,  packa^', 
etc.,  to  take  out  a  license  for  which  thcv  were  cliarired 
%M),  and  prescribed  a  jjcnalty  for  iie<rl(!ct  to  do  so.  A 
Baltimore  merchant  named  lirown  iniportct'  and  sold  a 
package  of  foreign  dry  goods  u-jtliout  having  taken 
out  a  license,  and  he  was  prosecuted  under  the  act. 
His  (lefence  wus  that  the  statute  was  unconstitutional, 
because  it  violated  the  provision  prohiI>iting  a  State 
IVoni  levying"  luvy  imposts  or  duties  on  imports  or  ex- 
ports," 

Brown  won  his  case  :  the  statute  was  declared  void. 
An  imported  article,  the  court  held,  continues  to  he 
part  of  the  foreign  commerce  of  the  country  while  it 
remains  in  the  hands  of  the  importer  for  sale  in  the 
original  hale  or  package  in  which  it  was  imported.- 
The  right  of  the  citizen  to  import  necessarily  implies 
the  right  to  sell  the  article  in  the  i'orm  and  shap(>  in 
which  it  was  imported,  and  no  State,  either  hy  a  direct 
tax  on  the  article,  or  hy  requiring  a  license  from  the 
importer  In'foro  he  is  permitted  tostdl.,  can  imi)ose  any 


19«  CONSTITUTIONAL    (Af^KS    SIM.I.IFIED. 

,^,,^.,,^.,,  „j,„„  ,,;„,  or  the  property  beyoiul  ^vhat  (^ou- 

<r,ess  bus  iiui.osea  by  its  laritV  law^. 

"    H„t  an  imnorto.l  articU-  becomes  M.bjcct  to  the  taxing  power  of 

"lo  iZe  of  a  purchaser.    It  then  ceases  to  be  a«  "  .a.port. 


CONSTITUtlONAl-    CASES    SlMl'LIKIKD. 


liM) 


ily  bcyoml  what  Cou- 

aws. 

Ijjtct  to  the  taxing  power  of 
broken  open  for  use  or  for 
m  the  hands  of  the  importer 
jes  to  be  uu  "import." 


STATE  DUTY  ON  -EXPORTS." 

ALMY  V.  STATE  OF  CAr.IFORNIA. 

[2+  How.  UiO.J 

A  statute  of  Californiii  imposed  ii  stuinp  tax  ou  all 
hills  of  lading  of  gold  and  silver  exported  from  the 
State.  Alniy,  the  master  of  the  ship  Rattler,  received 
:i  quantity  of  gold  in  the  port  of  San  Francisco  for 
transportation  to  New  York,  for  which  lie  signed  a  bill 
of  lading  without  attaching  a  stamp.  The  law  made 
this  a  misdemeanor,  and  he  was  indicted  and  fined 
$100  for  the  offence.  But  he  appealed  to  the  Supreme 
Court  of  the  United  States,  where  he  was  discharged 
and  the  fine  set  aside. 

It  was  a  tax  on  "  exports,"  said  the  court.  It  was 
the  same  as  thougii  the  tax  had  ix'onontlie  gold  itself, 
for  the  bill  of  lading  is  as  necessary  to  the  transporti;- 
tioii  of  goods,  as  casks  or  boxes, —  it  is  the  shii)'s  receipt 
for  the  articles  received,  without  which  no  one  would  in- 
trust his  goods  to  a  carrier.  "  The  intention  to  tax  the 
export  of  gold  and  silver  in  the  form  of  a  tax  on  the  bill 
of  lading  is  too  plain  to  be  mistaken.  The  duty  is  im- 
posed only  upon  bills  of  lading  of  gold  and  silver,  and 
not  upon  articles  of  any  other  description.  And  we 
think  it  is  impossil)Ie  to  assign  a  reason  for  imposing 
the  duty  upon  the  one  and  not  upon  the  other,  unless 
it  was  intended  to  lay  a  tax  on  the  gold  and  silver  cx- 
l)orted,  while  all  other  articles  were  e.xcmi)ted  from  the 
charge." 


200 


CONSTITtTTlONAL    CASES    SI.MIM.IKIKD. 


Wt)CH>RlTFF    V.  PAltllAM. 

[K  Willi.  ILM.] 

■  M()l>ile,  aUo,  about  the  yeur   18(15,  being  nuthorizo.I 
l,v  its    charter,  levied    a  tax  on  all   sales  at  auction. 
An  auctioneer  nanuMl  WoodrutV  received  from  States 
other  than  Alal)aina  large  amounts  of  goods  and  mcr- 
••handis*.,  which   he  sold    in  Mobile  to  purchasers   in 
their  original  and  unbroken  packages.     Parham,  tiie 
city  tax  collector,  demanded  the  tax  on  these  sales  ;  but 
the  auctioneer  refused  them  and  had  to  be  sued.     In 
the  Supreme  Court,  Woodrutl'  contended  that  the  tax 
was  nnc.)n9titutional  for  the  reasons  stated  in  Brown 
r.  Mayhind.     But  the  court  upheld  the  tax,   on  the 
cMonnd  that  the  word  "  imports"  in  this  clause  of  th(! 
Constitution  referred  only  to  articles  imported  from 
foreign  countries  into   the  United  States,  and  not  to 
.rood's  imiiorte.l  from  one  State  into  another. 

Woodruff  r.  Parha.n,  while  a-rt'clnf,'  with   Almy's  case  on  one 
„„i„t,  is  in  eonttict  will,  it  ou  auothor.     "  It  «eems  to  have  escaped 
the  attention  of  counsel  on  l)otl»  sides  in  Almy's  case,  and  of  the 
Chief  Justice  in  deliverin-  the  opinion,"  says  Mr.  Justice  Mii.lkk 
in  Woodruff   r.    I'arhani,   "  that  tlie    case  was    one  of  inter-state 
comm-rce      No   distinction  of  the  ivind  is  talien  l)y  counsel,  none 
alluded  to  bv  tlie  court,  except  in  the  Incidental  statement  of  the 
„.,.,„,«<■  of  th"e  voyage.    *    *     *    Th«  only  question discu.ssed  by  the 
,.„urt  is  whether  the  t)ill  of  iadin}.'  was  so  Intimately  ( onnccted 
with  the  articles  of  export  described  in  it  that  a  tax  on  it  v  :i9  a 
tax  on  the  articles  exported.     And  in  arguing  thl.s  proposition  the 
Chief  Justice  savs  that  '  a  bill  of  lading  or  some  equivalent  Instru- 
ment of  writin-  is  iuvarialily  associated  with  every  cargo  of  mer- 
chandize exported  to  a  foreign  county,  and  consequently  a  duty 
upon  that  is  in  substance  and  effect  a  duty  on  the  article  exported.' 
His  impossible  to  examine  the  opinion  without  perceiving  that  the 
mind  of  the  writer  was  exclusively  .lirected  to  foreign  commerce, 


i^m 


I'l.lKIKD. 


[AM. 


CON.STITUriONAL   CASK8   SIMI'LIKIKD. 


201 


iiml,  there  is  no  reason  to  suppose  that  tlic  <iiieslion  which  we  luiv . 
ilisciisscd  was  in  his  thought."  The  court,  therefore,  has  overrule'. 
.\lmy's  case  so  far  as  it  hel<!  tliat  articU^s  exported  from  one  Stale 
to  another  were  "  exports  "  within  the  Constitution. 


heinjr  uuthorizoH 

sales  at  auction, 
t'ivcd  tVom  Stales 
•f  sroods  and  hut- 

to  purchasers  iu 
;e9.  Pai'hain,  tlic 
n  these  sales  ;  l)iit 
id  to  1)6  sued.  In 
iuded  that  the  tax 
,9  stated  in  Brown 
I  the  tax,  on  the 
I  this  clause  of  the; 
les  imported  from 
States,  and  not  to 

another. 

h  Almy's  case  on  one 
seems  to  have  escaped 
ilmy's  case,  and  of  the 
lys  Mr.  Justice  Mii.i.kk 
was    one  of  inter-state 
talien  by  counsel,  none 
lental  statement  of  the 
iiestlon  discussed  by  the 
3  intimately  (onnccted 
tliat  a  tax  on  it  v  !i8  a 
ng  this  proposition  the 
«)me  equivalent  instru- 
ith  every  cargo  of  mer- 
iid  consequently  a  duty 
i>n  the  article  exported.' 
liout  perceiving  that  the 
d  to  foreign  commerce, 


rtlHM 


.'O'J 


CONSTITUTIONAL    CASES   SIMI'MKIEU. 


STATES     CAXXOT   TAX    FEDERAL    AdEXCIES. 


M<CUI.I.OClI  V.    THE    STATE    OF    MARYLAND. 

\\  WheiU.  :lic..] 

Theoppc.siLionto  tlu'  r.nlo.l  State.  Uauk'  took  vari- 
ous shapes.    The  l,u..k  l.ul  a  l.ia.ch  at  Halti.norc         ho 
State  of  Maryland  passocl  a  hivv  whic-li  ha.l  the  ctlect  ot 
l.vyins  a  tax  on  every  note  issued  by  tlie  hank  w.th.n 
the  Slate.     Mr.  McCuHough,  who  was  the  cashier  o 
tlie  Baltimore  hraneh,  refused  to  obey  this  law,  and 
l,ein.r  .ued  by  the  State  for  the  penalty,  judgment  was 
recovered   agai.ist  him,  which  judgment  was  affirmed 
hy  the  Marvland  Court  of  Appeals.     Then  the  case 
sL  taken  to  the  Sui.reme  Court  of  the  United  States, 
iu  whirl!  tribunal  the  State  law  was  declared  nncon- 
stitutional  and  void.     The  court  held  that  the  sover- 
ei.ru  power  of  a  Slate    extends  to  everythmg  which 
oxMstsl.v  its  authority  or  is  introduced  by  its  permis- 
sion,bnt  do.s  not  extend   to  those  means  which  arc 
,,„ploved  by  Congress   to  carry   into   execution  the 
powers  conferred  on  the  National  government.     It  the 
State  could  tax  these  government  agencies  it  might  de- 
stroy them,  for  it  might  tax  them  to  such  an  extent  as 
to  prevent  their  operation. 


'  See  ante,  p.  1S5. 


I'MKIEU. 


CONSTITl  riONAI.    CASKS    PIMIM.IFIK.n. 


20:5 


AL    AdENCIES. 


>F    MAKVLAXD. 


IS  liaiiU'  took  VJiii- 
il  Hiilliinorc.    The 
•li  had  the  ctl'ect  of 
)y  the  bank  within 
was  the  cashier  of 
)bey  this  law,  and 
vlty,  judgment  was 
incnt  was  affirmed 
Is.     Then  the  case 
the  United  States, 
IS  dochired  uncon- 
ohl  that  the  sover- 
.  everything  which 
(I'd  by  its  permis- 
e  means  which  arc 
into   execution  the 
;overnraeut.     If  the 
orencies  it  might  dc- 
:,o  such  an  extent  as 


J>OHHINS   V.    COMMISSIONEItS  OF   KKIK 
COUNTY. 

[1(1  I'et.  435.) 

Captain    l)ol)bins,  of  the    Unito.l     States    revenue 
cutter,  lying  at  the  station  at  Eric,  IVnnsylvaniu,  was 
notified  by  the  county  assessor  one  day,  that  tliero  was 
a  matter  of  $10.7')  duo  from  him  to  the  county,  by 
virtue  of  a  statute  of  Pennsylvania  which  authorized 
the  levying  of  a  county  tax  on  all  "  offices  and  posts 
„f  profit,"'' for    that  the  Captain's    post    was   one    of 
profit,  was  sufficiently  clear  to  the  tax-collector.     Uut 
Cai)tain  Dol)bins  refused  to   pay,  and  the  next  thing 
that  we  hear  of  him  is  as  a  successful  appellant  in  the 
Supreme  Court  of  the  United  States,  wliere  the  judg- 
moD.t  was  against  the  validity  of  the  statute. 

The  reason  of  the  tax-collector's  defeat  is  very  brief. 
An  officer  of  the  United  States  is  a  government  instru- 
ment ;  and  a  government  instrument,  as  was  decided 
ill  McCullough  I'.  State  of  Maryland,  cannot,  as  such,  be 
taxed  by  a  State. 


WESTOX  V.  CITV  COUNCIT.   OF   CHAllLESTOX. 

['.'  Pet.  ■t4',t.] 

The  city  council  of  Charleston,  South  Carolina,  in 
the  year  1823,  with  authority  from  the  State  Legisla- 
ture, levied  a  tax  on  all  personal  estate,  including 
stocks  of  the  United  States.  Mr.  Weston,  who  was 
the  owner  of  some  United  States  stock,  was  assessed 
thereon.     But  not  a  cent  of  tax  had  he  to  pay,  for  the 


■I 


204 


rONSTITl'TIONAL   CASKS    SlMI'I.IFIF.n, 


court  (Uh-kUuI  that  stocks  of  the  United  States,  owned 
by  i>rivate  persons  or  eorponitions,  eannot  he  taxed 
l.y  a  State.  The  National  <roverninent  is  given  hy 
tiio  Constitution  the  power  to  horrow  money;  the 
States,  therefore,  cannot  prevent  or  interfere  iu  any 
wav  with  tile  exenise  t)f  this  i)ower.  But  to  tax  the 
evid(,;:ces  of  tlie  National  debt  in  the  hands  of  tlie 
owners,  would  interfere  with  its  power  to  borrow 
nionev,  for  it  would  «liininish  their  value,  and  thus  make 
it  harder  for  the  jrovernment  to  tind  persons  willing  to 
loan  it  their  money. 


CRANDALI-.  V.   STATE  OV  XEVAI>A. 

[tl  Wall.  35  ; 

.\  Statute  of  Nevada  imposed  a  tax  of  $1  on  every 
l(ij-.on  I'-aving  the  State  by  any  railroad,  stage-coach, 
or  ot  her  i)ubric  vehicle.     The  tax  was  to  be  paid  by  the 
carriers,  and  they  were  required,  under  a  penalty,  to 
report  monthly  the  numl)er  of  persons  so  transported. 
Crandall,    who  was   the  agent  of  ii  stage    company, 
refused  to  report  or  to  i)ay  the  tax,  and  being  brought 
l>efore  a  State  court  was  Hned.     But  he  appealed  to 
the  Supreme  Court  of  the  United  States,  where  the 
statute  was  held  void.     '•  The  United  States,' '  said  the 
court,  "  has  the  right  to  call  for  the  services  of  its  citi- 
zens at  all  points  throughout  the  country,  and  to  trans- 
port its  troops  vxny  where.     Citizens  have  the  right  to  go 
to  the  seat  of  government,  and  to  all  other  places  where 
Federal  offices  are  situated,  and  to  ports  of  entry,  as 
the  necessities  of  their  business  may  require.     If  the 
State  could  tux    this  privilege  at  all,  it  could  tax  it 


iMl 


'IJFIF.D. 

3(1  Stiitcs,  owned 

cannot   he  tuxed 

ent    is  given    hy 

•ow  money;    tlie 

intcHere  in  any 

But  to  tax  the 

:he   hands  of  tlie 

lower   to   borrow 

ne,  and  thus  make 

)ersons  willing  to 


roNsTrnrioNM.  casis  siMi'i.sFiKr). 


2();i 


to  8n<h  ail  extent  as  to  render  it  impossihle  to  ex- 
ercise it." 

Ther*e  cases  flrmly  establish  the  prlnciplo  that  the  power  of  a 
State  to  tax  cannot  be  exercised  upon  property  of  the  National 
{iovcrninent,  or  upon  moans  which  that  Rovernraent  has  adopted 
to  carry  on  its  public  affairs.  As  the  amount  which  a  State  may 
raise  by  taxation,  cannot,  as  we  have  seen,  be  prescribed  or  lim- 
ited by  the  courts,  —but  the  State  is  supreme  in  this  matter  unless 
restricted  by  its  Constitution,  —  if  it  were  once  conceded  that  the 
National  property  or  agencies  were  a  proper  subject  of  the  taxinR 
power,  that  power  might  be  exercised  to  the  complete  destruction 
of  both. 


yEVAI>A. 


IX  of  $1  on  every 
•oad,  stage-coach, 
I  to  be  paid  by  the 
dcr  a  penalty,  to 
18  so  tran-sportcd. 
,  stage    company, 
md  being  brought 
it  he  appealed  to 
States,  where  the 
i  States,"  said  the 
services  of  its  citi- 
iitry,  and  to  trans- 
lave  the  right  to  go 
other  places  where 
ports  of  entry,  as 
ly  require.     If  the 
ill,  it  could  tax  it 


L'OC 


CONSTITrnONM.    CASKS    SIMl'UFIKD. 


UNITED    STATES    CANNOT  TAX  STATE 
AGENCIES. 


COL1L.ECTOR  V.  DAY. 

[It  Wall.  113.] 
Ill  18(54  it  was  t-nacUMl  I»y  Congress  tliiit.oii  all  the 
inoonu's  al.ove  $1,000,  of  persons  residing  in  llu'  Unite.l 
States,  there  shoiihl  be  loviod  and  coUeeted  Ji  ta.x  ot 
Hvc  per  ceni .     Anion>i  t liose  wlio  were  assessed   iin«U'r 
this    hiw    was   Judge"  Day,  of  the    Prolmte  Court  of 
Baiiistal.le,  Massaehusetts,  and,  although  he  paid  the 
tax,  he  paid  it  umh-r  protest,  and  Wrought  an   action 
a.'a'inst  tlie  eollcrtor  to  recover  it  back,  on  the  ground 
tlmt  his  income  wliich  was  taxed  was  his  salary  as  a 
State  officer,  and  that  the  United  States  had  no  more 
ri.rht  to  tax  his  salary  than  the  State  of  Pennsylvania 
hiTd  to  tax  Cai)taiu  Dobbins'  and  for  similar  reasons. 
The  Supremo  Court  said  ho  was  right  in  his  law,  and 
ordereil  the  collector  to  refund  him  his  money. 

Tills  case  is  very  IraporUnt  as  deciding  that  the  doctrine  that  the 
Stiles  may  not  lav  taxes  upon  the  instrumentalities  and  agencies  of 
ihe  nation  (see  McCi.llogh  v.  Maryland,  ante  p.  L'02,  and  ca.ses  seq.) 
annlies  in  the  same  manner,  to  the  same  extent,  and  for  the  same 
rc-Um,  to  the  exercise  of  the  taxing  power  of  the  United  States. 
Con-ress  cannot  lay  a  tax  upon  any  of  the  agencies  or  instrumen- 
talitTes  which  are  necessary  or  appropriate  for  the  legitimate  gov- 
ernmental acts  and  operations  of  the  States.  ^  ^  .  ^  ,„ 
Previous  to  this  decision  the  principle  had  been  much  debated  In 
the  Slate  courts.  Several  years  ago  Congress  laid  a  stamp  tax  on 
written  Instruments,  and  among  them  papers  used  in  judicial  pro- 
ceedings    The  law  provided  that  if  a  revenue  stamp  of  a  certain 


IFIKD. 


IX  STATE 


tliiit,nii  all  the 
intriii  till'  Unitod 
illectod  Ji  tax  of 
3  assessed  uiidiT 
iol)ate  Court  of 
ugh  he  paid  the 
ought  an  action 
V,  on  thci  ground 
i  his  sahiry  as  a 
Ltes  had  no  more 
of  Peiuisylvaina 
simihir  reasons, 
it  in  his  hiw,  and 
is  money. 

t  the  doctrine  that  the 
.llties  and  agencies  of 
p.  'M2,  and  cases  aeq.) 
nt,  and  for  the  same 
»f  the  United  States. 
;encies  or  inatrumen- 
r  the  legitimate  gov- 


CONMITI   I'K'^AK   CASKS   SIMI'LIKIKU. 


2(i7 


value  was  not  alllxed  as  r.M,uiri.(l,  the  paprr  lackh.g  such  stamp 
shouUl  not  1)0  use.l  in  the  suit  or  in  the  course  of  the  proccedinj;. 
When  it  was  sought  to  apply  this  law  t..  i)apors  tiled  or  us.^.l  in 
evidence  in  the  course  of  proceedings  in  State  courts,  the  Sliif 
courts  pronounced  the  law  void  so  far  as  it  extcn.lcd  to  them,  on 
the  ground  that  Congress  could  not  interfere  in  this  way  with  the 
administration  of  justice  in  a  State.  Warren  r.  IMul,  22  Ind.  :'7»:. 
The  law  was  repealed  and  the  question  never  reached  the  Federal 
Supreme  Court,  but  the  sul)sefiuent  case  of  Collector  r.  Day  shows 
that  If  It  had,  the  views  of  the  State  courts  would  have  been  sus- 
tained. 


been  much  debated  In 

ss  laid  a  stamp  tax  on 

used  In  judicial  pro- 

le  stamp  of  a  certain 


2U8 


CONHTirUTlONAI.   lAMKS    SIMI'LU'IKI). 


DUTY  OF  TONNAGE. 


CANNOX  V.  NEW  ORLEANS. 

[20  Wall.  577.] 

All  ordiuftiu'c  of  tho  City  of  New  Orlesins  roquirod 
to  \w  paid  us  "  levee  dues,"  by  all  steamboats  which 
.should  moor  or  land  in  any  part  of  tho  port,  ten  cents 
per  ton,  if  the  boat  were  in  port  not  exceeding  live 
days,  etc.  The  owner  of  the  steamboat  R.  E.  Leo  re- 
fused to  pay  the  dues,  and  appealed  to  the  Supreme 
Court  of  the  United  States,  where  the  ordinance  was 
declared  void  as  being  a  "  duty  of  tonnage." 


PACKET  COMPANY  v.  KEOKUK. 

[5  Otto,  80.] 

At  a  considerable  expense,  the  City  of  Keokuk,  Iowa, 
had  built,  paved  and  improved  tho  banks  of  the  Mis- 
sissippi within  its  limits,  and  had  erected  wharves  for 
tlie  convenience  of  vessels  landing  there.  For  the  use 
of  thesu  wharves,  the  city  (under  authority  from  the 
State ),  declared  that  every  vessel  that  should  make  fast 
to  them,  or  receive  or  discharge  passengers  or  freight 
thereon,  should  pay  certain  fees  graduated  by  the  ton- 
nage of  the  vessel.  Tho  boats  of  the  Packet  Com- 
pany which  ran  on  the  river  and  used  the  city's 
wliarves,  refused  to  pay  these  fees,  and  on  being  sued 
for  them,  claimed  that  they  were  "  duties  of  tonnage," 


.iriKi). 


CO.NHTITl  TIONAU   CA.SKS   SIMI'MIIKD. 


L'U'.I 


)rleiiiis  roquifod 
Diiinboals  which 
?  port,  ten  cents 
t  exceeding  live 
lit  R.  E.  Lee  ve- 
to the  Supreme 
e  ordinance  was 


SOKVK. 

)f  Keokuk,  Iowa, 
inks  of  the  Mis- 
cted  wharves  for 
re.  For  the  use 
ithority  from  the 
should  make  fast 
Migers  or  freight 
uated  by  the  ton- 
he  Packet  Corn- 
used  the  city's 
nd  on  being  sued 
ties  of  tonnage," 


,111(1  tlu'iefon^  (iiJ*  hi'ld  in  Camion  r.  New  OiUmih)  1h>- 
voiid  tlio  powt'i'  of  tlic  Stale  to  inipo>t'. 

Hill  \\n'.  coiirl  di'cidi'd  lli.it  Iho  Ifrs  were  (Icmiiiiticil 
lor  sei'vici's  ri'iuimvil,  viz.  :  piovidiiii;  tlit-  ItDiits  with 
wiiarvcs,  and  were  valid  and  colleclit)!*'. 

Section  m,  Aft.  I.,  o(  the  CoiiHtltiitloii  Uecliirus  tliiii  "  no  Sliitc 
simll,  without  the  couHi'iit  of  Connre.sx,  hiy  iiiiy  duty  of  loiiuiiur." 
It  l.x,  llicruforc,  not  coinpt'tt'iit  for  :  Stiitc  orStutt-'s  ii^rt'iit  (< . ;/.  a 
iiiuniclpiil  forponitloii)  to  levy  iIi.oh  upon  vi'sscls,  inciisincd  l>y 
ilu'ir  capiicily,  or  to  Impose  any  duth's  upon  IIkmu  for  the  prlvllcnc 
(if  enterin^j  or  remaining  In  or  leavinji  a  por..  This  Is  the  ^eiu'ral 
ink-;  yt't  then'  a.'c  two  ways  In  which  levies  may  lie  inai'ie  on  vt's- 
sds  hy  a  Stale,  vl/.. : 

I.  Where  tin'  In-ii  is  fur  spi rial  scrrirt'H  niulfriil.  "A  eliariit'  for 
services  rendered,"  .said  Mr.  .fusllee  .Snm.Nii,  in  the  Packet  Conipany 
case,  "  or  for  conveniunces  provided  is  In  no  sense  a  tax  or  a  duty. 
It  is  uot  a  liinderauceor  impediment  to  free  nuvujiatlon.  The  i>ro- 
hlhition  to  the  State  apiinsl  the  imposition  of  a  duty  of  tonnage 
was  deslfjneil  to  uuard  against  local  hlnderances  to  trade  and  car- 
rlHiie  by  vessels,  not  to  relieve  them  from  lialiillty  to  claims  for 
assistance  rendered  and  facilities  fnruishtd  for  trade  and  coin- 
incrce.  It  Is  a  tax  or  duty  that  is  prohibited;  soinethiufj;  imposed 
by  virtue  of  sovereifinty  not  claimed  In  r;;;ht  of  proprietorship. 
\Vhurfajj;e  is  of  the  latter  character.  Providlnj^  a  w  harf  to  which 
vessels  may  make  fast  or  at  which  they  may  conveniently  load  or 
unload  Is  rendering  them  a  service.  The  character  of  the  service 
is  tlie  same  whether  the  wharf  Is  built  auil  offered  for  use  by  a 
"^lale,  a  municipal  corporation,  or  a  private  individual;  and  when 
<  ompensation  is  demanded  for  the  use  of  th.e  wharf,  the  demand  is  an 
I'isertlon,  not  of  sovereij^nty,  but  of  a  right  of  projjerty.  A  passinji 
Mssel  may  uae  the  wharf  or  not  at  Its  election,  and  thus  may  incur 
liability  for  wharfage  or  not  at  the  choice  of  the  muster  or  owner. 
No  one  would  claim  that  a  demand  of  compensation  for  the  use  of 
:i  dry  dock  for  repairing  a  vessel,  or  a  demand  .  'jr  towage  in  a 
!i:irbor,  would  be  a  demand  of  u  tonnage  tax,  no  matter  whether 
Mio  dock  was  the  property  of  a  private  individual  or  of  a  State,  and 
no  matter  whether  proportioned  or  not  to  the  size  or  tonnage  of 
the  vessel.  There  Is  no  essential  difference  between  such  a 
liraand  and  one  for  the  use  of  a  wharf."  Right  here  is  the  dif- 
t.  rence  between  Cannon's  case  anil  the   Packet  Company's  case. 

1( 


'10 


coN-rrn  TioNAi.  (v^i"*  snii'iir  i  i». 


■ll,,.  .Imit!.-  in  111.-  ilr.t  was  mn.lo  by  th.-Clty  o(  NVw  OiU'ann,  f,.r 
Htop|.ln«  lu  ll.o  hurl...,-,  ev..u  tho.mh  no  whurf  was  us.V, ;  while  ll.r 
tax  wl.Uh  K.M.kuk  r..lU'.t.Ml  was  for  ii-.ln«  ^^l.arvl,•H  which  the  city 
U«,l  ..r.ri...l  at  i-r.al  cx|K-nsc.  The  former  wan  vmI-I,  the  latter 
valiil. 

■'  m. ,:  ll„  h  r,i  Is  ,1  tax  n„  pvn,wrtil  as  othrr  prntur'U  is  UtrM  in 
ih'sMU  Property  in  shll.s  an.l  vessels  is  like  all  other  pr  'v. 
andJs,  therefore,  snl.ject   to  l.e    taxed.     Therefore  the  St  y 

tav  the  owners  of  vessels  o.i  their  interests  in  them  as  pn.peiiy  l.y 
,he  satne  standard  etnph.yed  in  other  cases.  Hut  It  is  esse.ttial 
,as  we  have  seen,  >n,tr  p.  I'.'l .  that  the  vessels  shall  have  theh 
.,7...  within  the  Stale  that  taxes  thetn.  Then,  wa«  a  ferry  company 
whose.  ».o«tK  carried  goods  an.l  passen-ers  across  tl...  ^-^'^'^Vi^ 
river  from  Kast  St.  Louis,  which  is  In  IlUiK.ls,  to  the  C  ity  of  St. 
I  „ui.  which  is  in  Missouri.  The  con.i.any  was  an  Illinois  corpora- 
lion; 'its  t.oats  were  laid  up  when  not  in  use,  and  its  pilots  and 
.....in.ers  resided,  on  th.  Illinois  side  of  the  river.  It  was  held  that 
the  State  of  MUsourl  could  not  tax  these  ferry-boats.  St.  Louis  v. 
The  Ferry  Company,  11  Wall.  -J-*;*. 


liiM 


•i.ir  I  i». 

(>(  NfW  OrU'Uiw,  for 
wiH  usrd;  while  llic 
lurvcs  which  Ihi;  l-II.v 
\V!is  voiil,  till'  latter 

■(•  jtriiperlij  is  (a.if'i  in 
ko  nil  other  pr  ♦v, 
•  n'fiiri'  the  St  >' 

II  Mh'iu  hm  propi'iiyhy 
3.  l»ut  It  Is  essfiitiiil 
sscis  shiill  have  their 
(<  was  11  ferry  company 
icross  111.'  Mississippi 
)ls,  to  the  t'ily  of  St. 
■as  an  Illinois  corpora- 
so,  ami  Its  pilots  an. I 
river.  It  was  held  that 
ry-boats.     St.  Louis  r. 


CONSTITI  TIONAL   CASKH   NIMl'l.lKIKU. 


Ml 


CHAl'TI':UIir.  — TITE  rOAVER  TO 
IJOKUOW  MONEY. 


''BILLS  OF   CUED  IT." 


CIlAICi  V.  THE  STATE  OF  MINSOl'ltl. 

[I  I'et.  UO.] 

Ill  1M21  til*'  Lt'gisliitui'o  of  Missoiiii  iiutlioiizcd  the 
State  Ti'ca.sury  to  issue  certiticatcs  to  tlio  aiiioiiiit  of 
^lH)(),000,  ill  deiioiiiiiiations  not  excoe(liii!»  ten  dollars 
nor  less  than  fifty  cents.  These  were  suhsecineiitly 
issued,  and  were  in  the  following  forn  :  — 

"This  certificate  .shall  be  receivable  at  the  treasury  of  any  of  tlie 
loan  offices  in  the  State  of  Missouri,  in  discharge  of  taxes  or  debts 

line  to  the  State  for  the  sum  of dollars,  with  interest  for  the 

•  ame  at  the  rate  of  two  per  centum  per  annum  from  this  date." 

Some  of  these  certificates  the  Treasury  issued  to 
( 'raig  and  others,  who  gave  their  promissory  note  to  the 
State  for  the  amount.  When  the  note  fell  due,  they 
ilid  not  pay  it,  and  on  being  sued  they  pleaded  that 


212 


CONSTITUTIONAL   CASKS    SlMrLIFIEU. 


the  considenition  was  voi-l  bocausc  tlu'  oortiHeatos 
wtMO  void,  l.oing  "  bills  oforcdit"  whidi,  by  the  Con- 
stiluti..n,  the  States  are  prohibited  iVoin  issuing.  In 
the  Supreme  Court  of  the  United  States  it  was  held 
that  the  eertitieates,  even  though  they  were  not  made 
a  le-vai  tend.>r,  or  <lirected  to  pass  as  money  or  cur- 
reney,  were  "  !)ills  of  eredit,"'  and  consequently 
void. 


imiSCOE     V.    THE     HANK     OF    THE    C0M310\- 
WEAI.TH  OF  KENTUCKY. 

[11  Pet.  •-'57.] 

The  Legislature  of  Kentueky,  in    1S20,  established 
the  Bank  of  the  Commonwealth  of  Kentueky   in  the 
name  and  behalf  of  the  Commonwealth  and  the  insti- 
tution was  declared  to  be  exclusively  the  property  of  the 
Commonwealth.     The  president  and  director.s  were  to 
l)e    chosen    by    the    Legislature,    and    the  bank  was 
authorized   to  issue  notes  which  weic  to  be   receivable 
in  payment  of  debts  to  the  State.     One  day,  in  1830. 
Uriscoe  and  some  others  induced  the  bank  to  discount 
their  note  for  something  over  $2,()()()  at  four  months, 
receiving  the  amount  in  bills  of  the  bank.     The  four 
months  went  by,  the  three  daysof  grac;;  expired,  with- 
out the  note  being  met,  and  the  directors  were  obliged 
toluinirsuit  on   it.     Briscoe  and  his  co-makers  made 
the  same  defence  that  Mr.  Craig  did  in  his  contest  with 


MrLIFIEI). 

use    tin'  oortificates 
whii.'h,  by  the  Con- 

Ll  from  issuing.     In 
States  it  was  lieUl 

they  were  not  made 

8  as  money  or  cur- 
and    consequently 


F    THE    COMMOX- 
riCKY. 


ill    lS:.n),  estahlislieil 

of  Kentneliy  in  tlie 
wealth  and  the  insti- 
■ly  tlie  property  of  the 
and  directors  were  to 
,  and  the  hanlc  was 
kvere  to  be  receivable 
..     One  day,  in  1830. 

the  banli  to  discount 
2,(K)0  at  four  months, 

the  bank.  The  four 
if  <rrac;;  expired,  with- 
ilirectors  were  oljlige<l 
d  his  co-maliers  made 
did  in  his  contest  witli 


CONSTITI'TIONAI.    CASKS    SIMrMKIKI'. 


•2\:) 


the  State  of  Missouri  ;  tliey  said  tliat  the  bills  wiiich 
thov  had  received  were  "  bills  of  credit  "'  of  the  State 
and  void. 

lint  tlu'v  were  not  as  lucky  as  Mr.  Craig,  for,  al- 
thouiih  Mr.  .Justice  Stoky  agreed  with  tiicm,  the  rest 
of  the  court  held  that  the  notes  of  the  bank  were  not 
"bills  of  credit."  The  bank  and  the  State,  they  said, 
were  distinct;  the  notes  were  issued  by  tiie  former 
upon  its  credit,  alone,  and  could  only  be  enforced 
aiiainst  it  ;  they  were  not  issued  by  the  State  and  con- 
tained no  pledg"  of  the  State's  credit.  Mr.  Justice 
Stoky  look  the  very  sensible  view  that  what  tiie  Slate 
could  not  do  directly,  it  should  not  be  allowed  to  do 
indirectly  by  means  of  an  institution  created  by  itself, 
l)ut  the  other  six  judges  could  not  see  it  in  tl'is 
light. 

!Jy  Arlicle  I,  sect.  10,  of  tlic  ronstitution,  il  is  provided  that  no 
State  sliali  "  coin  money  or  emit  l)iils  of  credit."  Tlie  object  of 
tlie  prohibition  against  coinlniL;  money  wa.s,  of  course,  to  have  a 
uniform  currency,  which  could  only  be  accomplished  by  giving  Con- 
gress the  sole  power  to  regulate  the  currency.  The  iirohibilion 
uiiainst  emitting  bills  of  credit  grew  out  of  the  unpleasant  experi- 
ence which  the  Constitutional  Convention  had  had  In  the  matter 
of  colonial  bills  of  credit,  and  it  did  not  intend  that  each  State 
should  have  the  right  to  put  In  circulation  its  paper  obligations  to 
be  perhaps  depreciated  and  finally  dishonored. 

It  is  plain  that  the  phrase,  "bills  of  credit,"  is  broad  enough  to 
include  all  written  contracts  by  wliich  a  State  binds  itholf  to  pay 
money  at  a  future  day  in  consideration  of  services  rendered  or 
loans  made.  But  a  more  restricted  interpretation  has  been  given 
10  these  words  in  the  Constitution,  otherwise  no  State  would  have 
power  to  issue  bonds,  or  any  evidences  of  debt.  "  Hills  of  credit," 
as  used  in  the  CoiKStitution,  are  bills  issued  bj  the  State,  involving 
the  faith  of  the  State  and  designed  to  circulate  as  money  in  the 
ordinary  course  of  business.    As  seen  la  Craig  v.  State  of  Missouri, 


214 


CONSTITLTIONAL   CASKS    SIMII.IKIKI). 


it  is  not  necessary  that  the  State  should  declare  them  to  be  money, 
or  to  be  a  legal  tender.  Hut  the  State  may  charter  a  bank  an.l  em- 
power it  to  isaue  bills,  as  was  laid  down  in  Briscoe's  case,  supra. 


IKIKI). 

them  to  be  money, 
rter  a  bank  and  ein- 
coe's  case,  supra. 


CONiSTniTlOXAI,    fASKS    SSIMI'LIKIKD. 


2ir> 


CHAPEU  IV.  — THE  POWER  TO 
JIEGULxVTE  C  OMMERCE. 


COMMERCE  CANNOT  BE  REGULATED  BY  THE 

STATES. 


GIBBOVS   V.    OGOEX. 

['.(Wheat.  1.] 

As  some  small  reward  for  his  services  in  bringing 
the  steamboixt  into  practiciil  use,  the  State  of  New 
York,  by  a  statute  of  its  Legishiture,  gave  to  Kol)e:-t 
[''ulton  and  his  associates,  the  exchisivc  right  to  navi- 
gate all  waters  within  the  jurisdiction  of  the  State  with 
vessels  propelled  hy  steam,  for  a  term  of  years.  Not- 
withstanding this  statute,  one  Gibbons  ran  a  steaml)oat 
owned  by  him  between  New  York  City  and  Elizal)eth- 
l)ort.  New  Jersey,  which  steamboat  had  been  duly  en- 
rolled and  licensed  as  a  coasting  vessel  under  the  act 
of  Conirress  resulating  the  coasting  trade.  Oirden, 
who  was  the  assignee  of  Fulton's  rights  under  the 
Xew  York  statute,  applied  to  the  State  court  of  New 
York  and  obtained  from  there  an  injunction  restraining 
(iibbous  from  running  his  steamboat. 


f 

I 

/ 


■I 


i>n; 


(ONSTiniTlONAI.    CASKS    SIMI'MIIKM. 


CJiblu.ns  :.,.i.i-al*'a  t(»  tho  United  States  Supivn.e 
Court,  and  tlic  statute  was  declared  unconstitutional. 
It  was  a  "  re-nlation  of  commerce,"'  said  the  court, 
and  hevond  tlie  powers  of  a  State. 


THE   PASSEXGEK   CASES. 


[7  How.  -'.SI.  1 

These  were  two  ruses  — Smith  r.  Turner  and  Norris 
;.    (-,ty   of  Boston.  — which   arose    in   New  York  and 
Massiichusetts  respectively.     A  statute  of  New  York 
provided  that    the  health  otfi.'cr  of  the  port  ot  New 
York  shonhl  I)e  entitled  to  dcnnind,  sne  for  and  re- 
cover   fn.m  the   master   of   every  vessel   that  should 
anive  at  that  port  certain  sums  for  every  steerage  pas- 
son-rer  bnuiMil  hv  the  vessel   from  a  foreign  country, 
(„.  Ivom    another   State.     The  moneys  thus  received 
were  to  he  applied  towards  the  support  ot  a  marine 
hospital,  and  masters  of  vessels  were  suhjeeted  to  pen- 
alties for  failing  to  make  the  prescrihed  payments.     A 
Mi^sachusetts  statute  was  similar  in  its  general  tea- 
tiues.     Smith  was  sued  in   New   York,  and   Norris  in 
Alassaehusctts,  for  violating  these  laws;  and  the  de- 
rcncc  in  both  cases  was  that  the  statutes  were  -  regu- 
lations of  commerce,"  and  void. 

The  Supreme  Court  declared  the  statutes  unconstitu- 
tional and  sustained  the  defence. 


i,ii-ir.i>. 


Sliitt's   Stipn'iuc 

iiiiconstitiitioiial. 

suid  the  court, 


SES. 


'iiiiK'i'  and  Norris 
\  New  York  aiitl 
lite  of  Now  York 
the  port  of  New 
I,  sue  for  and  ro- 
essel   that  should 
very  steerage  pas- 
ii  foreign  eouutry, 
eys  thus  received 
[)port  of  a  marine 
■  suhjected  to  pen- 
lu'd  payments.     A 
in  its  general  fea- 
)rk,  and  Norris  in 
hiws  :  and  the  (U'- 
itutes  were  "  rej^u- 

itatutes  unconstilu- 


CONSTITUTIONAL   CASKS   snil'I.IIIIl). 


21' 


STATE  or  PENNSYLVANIA  \.  THE  WIIEEMNCJ 
HUIOGE  COMPANY. 

[Ill  How.  .-.is. J 

Tlie  Wlieeiinjr  Bridjie  Conii)any  were  authorized  liy 
the  State  of  Viririnia  to  construct  a  suspension  hrid<re 
across    tile    Oliio   Uiver.     Wlien  the  »'rid<;:e  was  coni- 
l)leted    it   was  found   that  it  liindered  tlie  passaire  of 
boats  asceii.iinir  and  ih^scending  the  river,  and  at  cer- 
tain stajri's  of  water  entirely  prevented  the  tnm.sit  of 
large  boats.     The  State  of  Pennsylvania,  seeing  that 
her  commerce  was  injured  by  the  obstruction,  brought 
an  acti( ''  to  have  the  bridge  removed  as  a  nuisance. 
'I'he  Bridge  Company  justified   its  erection  under  the 
Virixinia  statute.     Pennsylvania  replied  that  the  stat- 
ute interfered  with  commerce,  and  was,  therefore,  void. 
The  court  decided  that  this  was  so.      It  held  that  the 
power  to  regulate  commerce  between  the  States,  given 
to  Couffrcss,  extends  to  the  mivigable  streams  whereon 
that    commerce    is    carried  ;  that  commerce    included 
navigation  ;  that  Congress  had  recognized  the  Ohio  as 
a  navigable  river,  and  the  highway  of  commerce  ;  that 
the   bridge  interfered  with  such  navigation,  and  that 
the  Viririuia  statute  authorizing  its  erection  was,  there- 
fore, in  conflict  with  the  power  granted  to   and  e.xer- 
cised  by  Congress. 

And  the  court  ordered  that  the  l)ridge  should  be  re- 
moved, unless  within  a  certain  time  it  should  be  raised 
to  such  a  height  as  to  admit  all  vessels  at  all  stages  ot 
the  water. 


218 


CON8TnTTIONAL   CASES   SIMPLIFIED. 


STATE  OF  PENNSYLVANIA  v.  THE  WHEELING 
BltllXiE  C03IPANV. 

[18  How.  i-'i.] 

But  the  Bridge  Company  wouUl  not  down.  Instead 
of  puUinj?  do\v)»  the  strueture,  it  induced  Congress  to 
pass  a  statute  legalizing  the  bridge  in  its  then  condi- 
tion and  ordering  it  to  stand  at  its  old  height.  Penn- 
iiylvania  was  angry  and  asked  the  court  to  have  the 
directors  of  the  company  committed  for  contempt  in 
not  carrying  out  the  orders  of  the  court.  But  the 
court  held  that  the  bridge  was  now  legal,  for  Congress 
having  power  to  regulate  commerce,  might  place  ob- 
structions upon  its  free  exercise  at  its  discretion. 


EXCEPT  AS  TO  LOCAL  Rvr'^ ATIONS. 


COOLEY  V.    THE    PORT    WARDENS  OF 
PHILADELPHIA. 

[l:.'  How.  20!).] 

A  law  of  Pennsylvania  made  it  the  duty  of  every 
vessel,  arriving  from  or  boimd  to  any  foreign  port  or 
place,  to  receive  a  pilot,  and  prescribed  certain  duties 
to  the  masters  of  vessels  in  respect  to  such  i»ilots.  It 
also  provided  that  a  vessel  which  neglected  or  refused 
to  take  a   pilot  should   forfeit   a  certain   amount   of 


AM 


IFIED. 


E  WHEELING 


down.  Instead 
ccd  Congress  to 
its  then  oondi- 
height.  Penn- 
irt  to  have  the 
ibr  contempt  in 
court.  But  the 
:al,  for  Congress 
night  phice  ob- 
discretion. 


('<)N8Titi:th)Nai,  casks  ^iiMi-i.iriKi). 


ir.i 


r^^ATlONS. 


money,  and  one  Cooley,  tiio  owner  of  tlie  Undiiif, 
having  brougiit  himself  williin  tins  provision,  was  pio- 
ceetied  against  for  tlie  penally.  He  pleaded  tiiat  tin- 
law  was  unconstitutional,  beeause  |)ilot  laws  were  laws 
"regulating  eommeree,"  and  therefore  beyond  tin- 
power  of  a  State  to  enaet. 

The  Supreme  Court  said,  that  though  it  was  tiue 
that  pilot  laws  were  regulations  of  eommeree  within 
the  Constitution,  yet  that  they  w»u-o  not  therefon-  void. 
The  power  to  regulate  (;oinmerce,  the  court  said,  in- 
cludes various  sul).ieets  upon  some  of  which  there 
should  be  a  uniform  rule  for  the  whole  country,  and 
iil)ou  others  there  may  very  well  be  different  rules  in 
different  localities.  .In  the  first  class  of  cases  the 
power  is  exclusive  in  Congress  ;  in  the  second,  unless 
Congress  legislates  upon  the  subject,  the  States  may. 
Pilot  laws  are  regulations  of  commerce  which  may 
very  well  be  different  in  different  localities,  and  as 
Congress  had  never  passed  a  uniform  pilot  law,  the 
State  laws  on  tlu)  subject  were  good. 


[IDENS  OF 


WHAT  IS   '^  COMMERCE." 


le  duty  of  every 
/  foreign  port  or 
led  certain  duties 
»  such  ivilots.  It 
lected  or  refused 
itain   auiount   of 


PAUL,  V.  VIUGINIA. 

[M  Wall.  Ui8.] 

A  Virginia  statute  provided  that  no  insurance  com- 
pany, not  incorporated  under  the  laws  of  the  State, 
should  carry  on  business  in  the  State  without  a  liconso, 
to  obtain  which  it  had  to  make  a  deposit  of  securities  in 


22U 


CONSTITITIONAI,   CASKS   SIMIM.irlKI). 


11...  Stat*'  treasury.  Mr.  Samuel  Paul  was  the  enter- 
l.iisiug  aireut  in  Virjrinia  of  some  New  York  iiisuvance 
ooinpirnies,  au<l  he  undertook  to  issue  some  polieies 
\\ithout.  haviiiir  ohtained  the  above  license.  Mr. 
Samuel  Paul  eame  to  p-icf;  he  was  fined  for  his  d.s- 
„l,t.dieii.-e,  and  on  iippeal  to  the  Supreme  Court  of  the 
United  States  llie  judfimeut  was  atHrmed. 

The  Supreme  Court  ruled  that  the  Virfrinia  statute 
was  not  u  regulation  of  commerce,  for  the  very  good 
reason  that  issuing  a  policy  of  insurance  was  not  com- 
merce.    "The  policies,"    said    Mr.    Justice    Fif.i.i., 
-  are  simple  contracts  of  indemnity  against  loss  hy 
iire,  entered  into  between  the  corporations  and  the  as- 
sured for  a  consideration  paid  by  the  latter.     These 
contracts  are  not  articles  of  commerce   in  any  proper 
meaning  of  the  word.     They  are  not  subjects  of  trade 
and  barter  otlered  in  the  market,  as  something  havmg  an 
».xi«tence  and  value  independent  of  the  parties  to  them 
They  are  not  connnodities  to  be  shipped  or  forwarded 
from  one  State  to  another,  and  then  put  up  for  sale. 
They  are  like  other  personal  contracts  between   par- 
ties, which  are  completed  by  their  signature  and  the 
transfer  of  the  consideration.     Such  contracts  are  not 
inter-state  transactions,   though   the  parties   may    be 
domiciled  in  diflerent  States.  " 

Section  8.  Art.  1.,  of  the  Coustitution,  provides  tliat  Congress 

shall  have  power  "  to  regulate  commerce  with  foreign  nations  and 

a      ngthe    everal  States,  and  with  the  Indian  tribes."     In  the 

L^f^deration  which  preceded  the  Federal  Union,  ^^^^ 

nowerover  the  subject  of  commerce,  and  each  btate  made  such 

Z  on  the  subject  as  it  saw  nt  to  make.    Tl>e  result  was  d.sas- 

rmis     The  competition  between  the  different  Commonwealths  led 

he"  pas.a.e  of'.aws  by  each  State  which  should  ^•---^J'^-" 

trade  at  the  expense  of  the  others,  and  the  framers  of  the  Constltu- 

t[«,t  with  great  unanimity,  agreed  that  commerce  between  the 


.I1'IKI>. 


(ONSTITUTIONAIi   CASIM   SIMI'Mlir.l>. 


!1 


was  till-  eiitcr- 

Ydik  iiisuvMiic*' 
10  some  polit'it's 
0  license.  Mr. 
inctl  for  his  <lis- 
!Hie  Court  of  t lie; 
ned. 

Virfriiiitv  statute 
.1-  the  very  good 
ice  Wiia  not  coni- 

Justico  FiF.i.i), 
'  against  loss  l»y 
tions  and  the  as- 
le  latter.  Those 
ee  in  any  proper 
subjects  of  trade 
nething  having  an 
e  parties  to  them, 
ped  or  forwarded 

put  up  for  sale, 
cts  between  par- 
iornature  and  the 

contracts  an'  not 
parties   may    be 

•ovidea  that  Congress 
h  foreign  nations  and 
idian  tribes."  In  the 
lion,  Congress  had  no 
lach  State  made  such 
The  result  was  disas- 
it  Commonwealths  led 
lould  increase  its  own 
■aniers  of  the  Constitu- 
jmmcrce  between  the 


States  and  foreign  nations  was  a  sulpjui,  1..  yond  ni;  other>,  lo  be 
dealt  with  liy  tlu-  general  govenunrnt,  wliich  liud  no  Inu-rcsl  In 
benctlting  one  Slate  at  the  expense  of  aiiotlier. 

Commerce  includes  not  only  tlic  buying,  selling,  and  cx.-lianu.' 
of  commodities,  but  also  navigation  by  water  and  tralllc  by  bind. 
The  subject-matter  of  tralllc  may  be  either  goods  or  persons.  (Mr. 
Justice  IJAimni  K  went  out  of  his  way  in  Miln's  Case  to  say  that 
persons  cannot  l)e  the  subject  of  commerce,  and  that  therefore  laws 
regulating  the  transportation  of  persons  by  the  Stale  were  const  i- 
tutional;  but  this  idea  was  speedily  overruled  by  the  Supreme 
Court.;     On  this  point  see  I'aul  r.  Virginia,  (titte,  p.  21'.'. 

Gibbons  I'.  Oirden,  The  l>asseii-er  Cases,  ;ui<l  The  State  of  I'ennsyl- 
vaniar.Tlie  Wheeling  Uridge  Company  are  tlie  leading  ca.ses  under 
this  clause  of  tlie  Constitution.  Brown  r.  Stale  of  Maryland  C'lit,', 
p  i'i7)  which  we  have  seen  as  construing  the  meaning  of  "  duties 
<m  imports,"  is  a  much  cited  authority  on  this  part  of  the  Constitu- 
tion also.  There,  it  will  be  remembered,  tl.ie  State  statute  re(|uired 
all  Importers  of  foreign  goods  by  the  bale  or  package,  selling  the 
same  l)y  wholesale,  to  take  out  a  license.  The  act  was  held  void, 
first,  because  it  laid  a  duty  on  imports,  and  secomoy,  because  it 
was  a  "regulation  of  commerce." 

But  while  the  Constitution,  as  (luoted  above,  gives  ("ongress 
power  to  legislate  on  the  subject,  there  is  no  express  provision  lu 
the  Constitution  wldch  Inhibits  tlie  States  from  doing  the  same 
thin-'  The  question  then  arises.  Is  there  any  Implied  prohibition 
on  the  States  from  the  fact  that  the  power  is  given  to  Congress? 
The  answer  is,  tliat  tliere  is  to  a  certain  extent.  Two  rules  have 
been  laid  down  by  the  Supreme  Court,  viz. :  — 

1  Where  the  aubjert  ii>  of  a  national  character,  or  capable  of  one 
uniform  system  or  plan  of  regulation,  the  power  of  Congress  iscxlusire. 
Here  the  States  have  no  right  to  pass  laws  at  all,  even  if  Congress 
does  not,  for  inaction  on  the  subject  by  Congress  Is  equivalent  to 
a  declaration  that  the  commerce  under  Its  control  shall  be  free  and 
untrammeled,  and  hampered  by  no  regulations  at  all. 

2.  Wien  the  snhject  is  of  a  local  character  the  States  may  legixlate, 
if  Congress  has  not.  Pilot  laws  and  harbor  regulations  are  an  ex- 
ample of  this  class  of  laws.  See  Cooley  v.  Port  Wardens,  supra.  ^ 
Hut  it  should  be  remembered  that  even  these  local  subjects 
may  be  brought  under  the  control  of  Congress  at  its  discreilon. 
The  State  laws  are  valid  so  long  as  Congress  passes  no  laws  of  the 
kind,  but  as  soon  as   the  National  government    cliooses  to   take 


i 


222 


((>N>TmTI(1NAI,    CASKS    SIMI'I.II  I  r.l>. 


the  subject  uiuIit  Hh  ciilrol,  the  Stale  laws  tease  to  be  of  any 
luitlinrily. 

on  tlu-  ..llifi-  luiiid,  tliiTc  arf  two  classes  of  cases  In  which  the 
power  of  the  Stuti-s  over  coiumerco  Is  exclusive,  viz. :  — 

1 .  I»7i</-c  thr  i-ommerri'  is  jiot  vrtro-ti'i-ntorinl.  « >n  this  see  Veazle 
V.  M<>or,  post,  |i.  -'-':''. 

1'.  W'hr),  the  irfinl'ttion  is  vUhiii  the  poller  power  of  the  State. 
As  to  this  HOC  City  of  New  York  r.  Mlln,  and  The  License  Cases, 
post,  i>.  -.5. 


IKIKl). 

L-easc  to  be  of  any 

cases  in  whleli  the 
,  viz. ;  — 

« >n  this  see  Veazle 

pmrfi-  t'f  the    Staff. 
The  License  Cases, 


CONSTITiriONAI,   CASKS   MMl'LHIin. 


•J-J'A 


WIIA  T  IS  COMMillK  E    -  AMiJSd  "    THE  STA  TKS. 

VEAZIE  V.  MOOR. 

[11  How.  rids.] 

The  livt'i-  ronoli.scot  is  sitimtrd  ciitircly  within  the 
JiliiU'  of  Maims  having  its  rise  luf  in  llio  interior  of 
till'  State.  Its  npptT  part  is  .si'parati'd  from  titlo 
water  Ity  falls  iinpas.sahl«!  for  purposes  of  navij^ation, 
anil  the  rivor  docs  not  form  a  jKirt  of  any  continuous 
track  of  coiiinicrco  between  other  States  or  for- 
ei"n  countries.  The  exclusive  rii^lit  to  run  boats 
on  this  part  was  jjfranted  by  the  State  to  Moor,  who.*e 
riirhts  were  contesteil  by  Vea/ic,  who  considered  the 
irrant  to  Moor  unconstitutional  for  the  resisons  in 
Gibbons  ?'.  ()u:den. 

In  the  Sui)reni(!  Court  the  granV  was  held  valid. 
The  court  said  that  coininerce  with  foreign  nations, 
which  the  States  are  ]n'oiiibite(l  from  regulating,  canno: 
bo  applied  to  transactions  uhoUy  internal — between 
citizens  of  the  same  community. 

To  constitute  "  commerce  between  States  or  foreijin  countries," 
it  is  necessary  that  It  be  not  contlned  to  one  State  exclusively. 
The  ordinary  trade  of  a  State,  the  local  buying,  selling  and  ex- 
change, the  milking  of  contiacts  and  conveyances,  the  rules  for  the 
regulation  of  local  travel  and  communication,  and  all  the  inflnlte 
variety  of  nuitters  which  are  of  local  Interest  exclusively,  are  left 
wholly  to  the  regulation  of  State  law.  The  commerce  of  a  State, 
which  Congress  may  control  and  which  a  State  must  not,  must  In 
some  stage  of  its  progress  be  extra-territorial.  "Nor,"  said  Mr. 
Justice  D.\NiKi,  In  Veazle  r.  Moor,  "can  it  be  properly  concluded 
that,  because  the  products  of  domestic  enterprise  in  agriculture  or 
manufactures,  or  in  the  arts,  may  ultimately  become  tl.e  subjects  or 


Mi* 


!1 


,,,NMrHTl..N\I.    (   \>l >    MMn.llllK. 


.Ih.i  (lir  ••oiilr.il  uf  til.'  iiuMUis  <«!•  the  fiii<Miriii:i'- 

v;;;;;;^;;:;r;.:::;>l:■>;^:>-  - *-":"^;!r;;f 

l.hln  L  luM...rl  oi  tU.-   phru.o  '  f..r.M«n  .  ...nnum..   or  fairly  in.. 

,    ',     „,  ,  ,v...tl.un.  of  the  ,...wer  to  reuulut.  ^urt.  .•o,n.n..n-.. 
'     ,   .  n  a.  fur  rnuhln^  ...  .hi.  «ouh.  ex....u.  to  co„tra.-tH   ,..- 

t™  .   .l«.n  a,..l  .•iti/..n  of  .h.  .an...  S.at..  would  .ontro       ••  P     - 
sits  of  the  planter,  llu-  jtra/.iet.  th.  n.anufa.M.nvr,  .h.  .n...hani...  ih. 
,ll,    ratio,;   of  tlu.   c-«lli.ri.H  un.l    .nin.s  an.   furnnccs.o 
,.  „  u   ;  f..r  ll.T..  i.  not  on.,  of  tho.-  «vo..ulion..  tlu-  re.nl.s  of 
vhi         Iv   M.t  h.a.nu.  th..  .n..j....s  -f  fo-^n  cnnn-rr.   uml  •.• 

.  r       ei"h..r  hy  turnpik.-s  .•anal.  ,.r  rallnm.ls  fr.-n.  p.-.n.   t<.  po  « 
ul  ...vL.  States  t..war..  un  niti.nat..  ....tlnati.,n^       nH 

,,,,„.„mon  w.M.l.l  off.clnally  pr..v,..,l  .-r  paraly/...  .-vers  cffo.t  at  ,n 

'  ,  i,v.  tlu.  s.v.ral  Stat...,  for  it  cann.it  hu  .uppo..'.! 

tirna    niprov.Muint  by  th..  M\<  lai  .-^li."    ,  •  i,,i,.  ii,,. 

h  t  Ih-  StatcH  W..UI.1  ..xluu.M  tluir  capital  an.l  th.-ir  ..n..lit  in     1... 

.  ,  r  c         «•'  ttMnpik...,  ..anaU  an.l  railroa.ls.  ,h.;  r.-nunorulion 

, :  i  ,      .  fn.n.  vvhh.h,  un.l  all  control  ov..r  which,  nu^ht  he  ■nn....  - 

.  y  ,vv...U..l  fron.  11.."..  h....an...M..h  pnl.lic  work,  w.'-"-"-,  -"; 

,  .  H  f      a  c.m.nu.r.«  v  imh,  whiLt  availing  ItM.lf  of  tins,  facllti... 
;;.;;:,;;;;.:e:;;o;;:b,y  int..rnal,  altho.....  interme.Uat..iy  or  nl.in.atHy 

it  iniirlil  !>.'.. onii"  fort'iiin."  , 

•^.  ..I  iUu..n.,i..n  of  thi.  rnh-  aro.e  in  is.;:..    fo..«re..  pa.... 

a  law  re.M,latin,  .1...  sal.  of  ilh.n.lna.in;;  oil,  ..n.l  impos..,«  penalties 
?.,r  Jr  pa  i-t  of.Vrln«  for  .ale,  or  seliin,  i.,  ex.......  af.er  it  ha.l  been 

'Z'.L  t.::  pn...Ti......  te.t  as  a  pr.,teetion  "^--^  r;!':;;^:, 

Tl...  law  was  hel.l  in..perativ.  within  State  Innil..  f  ..>  cxpr  . 
!  ..t  c7f  power  to  regulate  eonnner.e  an...n,  the  '^t'^;-'"  ^  *'  '^ 
r  ie  J  ..Ice.  "  has  alway.  b..en  nn.hr.too.l  as  hmite.l  by  Its  terti.s, 
;U-':Mrt.;al  .l..nial  of  any  p.-wer  to  It^terferewiU.  the  U^rna 
tra.ie  an.l  hu.inc.s  of  the  separate  State.."  U.  S.  ,.Dewltt,,. 
.     Wall.  41. 


k^M 


I'lKH. 


rONHIITt   IIONAI,    (  A>l>    SIMI'I.IIIKI*. 


ii't 


1  or  the  fiictiiirnttt'- 
•ti  (I  is  Icultlinatrly 
icrcr,'  or  (ulrly  im- 
to  Mucli  (•iiiuiiifrcc, 
111  to  fontriutw  l)i> 
Id  ciiiitrol  tlif  pur- 
r,  ilicmi'ilmiiif.lhf 
us  uiitl  (iiriuic'c^ol 
lions,  till"  rosiilis  of 
conmuTci',  uikI  Im' 
roiii  poiiil  t"  l«>ii>' 
Lvxtlniilion.  Siifli  II 
(■  cvrry  iffort  ul  iii- 
ciumothf  supposed 

1  llicir  ITl'dll    III    lilt! 

;,  the  rciriiiiifriiUon 
li.niiglil  lie  liiinu'di- 
iirk-  would  111'  fiicll- 
|(  of  tlusi'  fiicilllifs 
llaU'ly  or  ultlnuUely 

I,  Connress  piissfd 
1  imposing  peimltie-* 
(■|it  iiftirit  luid  bet'ii 
1  iiiiaiiiHl  explosion, 
nils.  "Till!  express 
he  States,"  said  the 
limitedbyils  terms, 
ere  with  Ihe  internal 
U.  S.  f.  Dewitl, '.» 


('OMMEIt(^K  AM)    Tin-:   J'OLiCK   I'OWEIi. 

THK  IJCBNSK  C'ASEM. 
[5  How.  504.] 

'i'h«'so  ciiHt's  were  tluc-c  in  huiiiIkt,  mikI  were  all  con- 
si(hM-(>.(l  l»v  tlit^  court  at  (In-  siiint!  tunc.  In  Mii.ssiiclm- 
.scits,  Klitxlr  Islaiid,  aiiil  New  HampsliiK'  tlicro  wimt 
.•statutes  rnrldddiiiir  lli«?  salo  (ifspiriluoii.s  liiiiior,  in  less 
iHiantities  tliat  twciity-oifxlit  <.'allons,  without  a  lictMisc. 
Tliurlow,  in  Mas.^acliusetts,  ivtailcil  .ioino  licjuor  witlioiit 
a  lici'U.s*'.  I'ii'iTc,  liaviiijr  |)Uj('liasc(l  u  MUiall  l)aiicl  o'" 
.Vnit-rifai)  <.'ii>  i"  Hostoii,  carried  it  to  Ni'W  Ilauipsirnv, 
where,  not  licinglicen.scd,  ho  .«old  it  in  itf*  oriL'inal  pack- 
a<'c.  Fletcher,  havinjr  purchased  from  the  original  im- 
porter soino  French  brandy, sold  it  in  Rhode  I.sland  with- 
out a  license.  Each  was  indicted  and  convicted,  and  all 
contested  the  conviction  on  theirround  that  the  license 
laws  wcMC  reiridati(»ns  of  commerce,  and  Itevoiul  the 
power  of  the  States  to  pass. 

The  eourt^  for  several  reasons,  decided  that  the  laws 
were  valid,  the  princ^ipal  one  being  that  they  were 
police  regulations  and  not  regulations  of  commerce 
within  the  Constitution. 


CITY  OF  NEW   YORK  v.  MIL.N. 

Ill  Pet.  102.] 

The  State  of  New  York  passed  a  law  which  required, 
luider  a  penalty,  the  master  of  every  vessel  arriving  in 

IT) 


22t;  CONSr.TUTTONAI,   CASKS   SIMIM,1F!ED. 

NVw  York  iVo.n  a  toroi-n  country,  or  fro.n  u  port  in 
:u.otl.ev  St.to,  to  nn>ke  a  report  in  --tn.g.  w^^ - 
twentv-lbur  hour.,  of  tlie  nan>o.s,  ajres  and  a.t  pl-.ce 
1,-scttlnn.nt  of  each  passenger,     ^he  mas^r  of  the 

ship  Kn.ilv,  tVon.  Liverp<,ol,  which  arnved  n.  Isew  Yo  k 
.,  J  August  <h.y  in  the  year  1S2!K  wuh  several  uuuh^ 

nassen^rers.  failed  to   make  the  rep<.rt,  and  M.ln,     1. 
owner,  was  sued  by  the   eity  for  the  pena  ty      Mdn 
defended  his  captain's  act  on  the  ground  that  the  ^e^ 
Yorkslatuce  assumed  to   regulr.te  eomn.erce  he  ween 
the    port    of  New    York  and  fc  reign  port,  and    was 
iLoUitutional.     Butthceourt  held  that  the  sane 
V  was    not  a  regulation  of  conuneree  but  ot  police    and 
the  statute  was  declared  valid.     "A  State,      said  Mi. 
.Justice  IVxunoru.  "  has  tiie  same  undeniable  and  unl.m- 
iU>d  iurisdicth.n  over  all  persons  and  thmgs  w.thm.ts 
t,niU>rial    bmits  as   any   toreign   nation,    wliere    t  ntt 
lurisdiction  is    not  surrendered  or  rest  ranged   by  the 
Constitution  ..f  the  United  States  ;  by  virtue  of  th  s    t 
is  not  onlv  the  right,  but  the  bounden  and  solemn  du  v , 
of  a  State  to  advance  the  safety,  happiness  and  pros- 
peritv    of   its  people  and  to  provide  for  its  genera 
veu4  bv  any  and  every  act   of  legislation  which  .t 
nuvvdeem  to  be  conducive  to  these  ends,   where  the 
power  <.ver  the  particular  subject  or  the  manner  of  its 
exercise  is  not  surrendered  or  restrained  in  the  manner 
iust   stated.     All  these  powers  which  rel.te  to  mere 
.uunicipal    legislation,    or   what    may   perhaps   more 
,,„,erlv  l»o  -   .-1  internal  police,  are  not  thus  surren- 
dered oV  restrained,  and   consequently  hi  relatn.n  tc 
ll.ose  the  authority  of  a  State  is  complete,  unqualihec 
and  exclusive." 
The  police  power  of  u  State,  and  the  matters  properly  fallln, 


ilMI'MFIED. 

y,  or  from  ii  port  in 
t    in  writing,  witliin 

ajres  and  lust  place 
The  master  of  the 
1  arrived  in  New  York 
with  several  hundred 
.'port,  and  Miln,  the 
r  the  penalty.  Miln 
jrroimdthat  the  New 
15  eomnieree  l)etween 
reign   ports  and    was 

held  that  the  statute 

i-oe  but  of  police,  and 

"A  State,"   said  Mr. 

undeniable  and  unlim- 

I  and  things  within  its 

II  nation,    where    that 
or  restrained   by  the 

s  ;  by  virtue  of  this  it 
nden  and  solemn  du'y, 
V,  happiness  and  pros- 
rovide  for  its  general 
of  legislation  which  it 
these  ends,   where  the 
et  or  the  manner  of  its 
L>strained  in  the  manner 
i  which  re'-.te  to  mere 
it    may   perhaps    more 
ce,  are  not  thus  surren- 
equently  in  relation  to 
is  complete,  unqualitled 


the  matters  properly  falling 


CONSI  ITITIONAL    CASKS    SlMI'MFIKl). 


2l>7 


witl'.iii  it,  are  discussed  more  at  It'iigtli  in  a  sul)f!('<iui'ut  cliuptor,;io.'i;, 
riiap.  VI.  In  City  of  New  York  r.  Miln  and  The  License  Cases, 
laws  which  itwasen(leavore<l  to  have  nullilledas  rcfiuhitionii  of  com- 
merce were  held  to  be  not  regulatlous  of  "commerce"  but  of 
"police." 


•)os 


C;oNSll'r»JT10NAL 


CAJSKS    SIMI'LIFIEU. 


FI.ETCHER  V.  PECK. 

I^t;  CrancU,  ><7.] 
•     I    .UVituro   bvsulute,  made  agrantof 
A  Geo,...a  >^^'^-;"^'^'^^,,h,„j,.ent  Legislature  ot 
,,,,,,<  t..  .erta.u  parte.      A     U.     l  ^^  ^^^_ 

tl-anu.  State  rov<^.^^^-^-^^^;^^^^ 

'■'^''  ^•'•^'•:;!;;:S>.;  1^  ctt  hdd  tUat  U.  second 
r^luUwasvluU^^^ 

..shall  i.a.s  a«y  law  ""'"^ "'"f, '  "  ",   "in  Fletcher  r.  Peck,  "is  a 
..mtract."  -'•>  Chief  Justice  Mm     -^^^  ^^  either  executory  or 

cmpao,  hotweon  two  or  ^^^^I:^':;-^^  in  -Uich  a  party  binds 
executed,    ^u  executory       n^^^^^^  .,  eontract  executed 

Ulmselliodooruottodoapari  ^^^^^^^^^^^^    ,    .    *     A 

i,  oae  in  which  t>'«  "^3^^'*J,,^;";™u  l«  executory,  coutains  obU- 
eon.ract  executed,  as  well  as  om  whi  ^^  ^^^^  ^  ^^^^^,„       „ 

nations  binding  upon  the  i>^;"^-  '  ^  ^„i„,  «ome  act.  «•.  for 
on  a  certain  day,  or  to  do  or  re^  alu  r  ^^^  ^^^^  ^^^^^^^^  ^^  ,.  i, 
a  conMderatioii,  jiives  C.  .i  aieu 

.xeculory.nnd  that  o(  «• '--^Vea,  Ibat  the  term  " contract- 
It  «aH  laid  down  u.  ''"''r.h.vecuory  and  executed  ".outracts-, 

-  -  -"ira::::::": rulcirriheretore  ....  Ao.  e.. 
that  a  grant  is  an  txccuicu 


^Mi 


IFIKU. 


fONSTITUTIONAL   CASES   SIMI'MKIKD. 


■'l".» 


SU,te  to  an  individual  are  within  the  Constif.itiou.  Tlu's.  a  Slate, 
l,y  the  Constitution,  is  prohibited  from  impairing,  by  altering, 
amending,  or  repealing  the  terms  of  the  grants. 


y  lilGHTS. 


J,  CONTRACT. 


K. 


.!,  made  a  ^'vant  of 
lent  Legislature  of 
1  the  ground  of  al- 
the  lands  to  other 
Id  that  the  second 
3d  the  obligation  of 


provides  that  no  State 
Lion  of  contracts."  "A 
,  Fletclicrr.  Peck,  "isa 
)(l  is  eltlier  executory  or 

in  which  a  party  binds 
ag.  A  contract  executed 
)  performed.    *    *    *    ^ 

executory,  contains  obli- 
;rees  to  pay  a  certain  sun. 
i  dolus  some  act.  U.,  for 
8.    The  contract  of  A.  is 

Ihat  the  term  "contract" 
ry  and  executed  ".outracts; 
I  therefore  grant*  from  lh<^ 


?;}() 


CONSTITCTIONAL    CASKS    SIMI'LIFIKD. 


BUT  NOT  PUBLIC  OFFICES. 

BUTI.ER  V.   PENNSYLVANIA. 

[10  How.  Iiv.-.] 
On  the  tivst  dav  of  February,  1.S4H.  Mr.  Butler  was 
Hpnointed  by  tho  Clovernor  of  Pennsylvania  a  Canal 
Conuuission^r,  for  one  year  from  date,  under  a  law 
(l.on  in  forco,  whiel.  directed  the  Governor  to  appomt 
,„„uaUv  canal   connnissioners   whose    terms    ot  office 
should  "eemtnence  on  the   first  of  February  in   em-y 
year,  and  whose  con.pensation  should  be  tour  doHars 
;,.,    ^linu.     Mr.    linller   gladly    accepted    the    office, 
its  enu,lun>ents  and  its  duties,  but  in  April  ot  the  same 
year  the  Legislature  reduced  his  salary  to  three  dollars 
^day,  and    ordered   that  .m  and   after  the  to  lowmg 

October,  Canal  Connnissioners  should  be  elected  by  the 
people  instead  of  appointed.  When  the  election  came 
l,lf  Mr.  Butler  was  not  elected,  and  he  had  to  step  out 
to  make  room  for  the  snccessful  candidate. 

Mv  Butler  was  not  satisHed  with  his  treaiment,  but 
ela.n.cd  his  salary  at  four  dollars  a  day  as  of  old,  from 
the  time  the  new  law  had  been  passed  t.ll  ^^^^^^ff 
his  term  in  February,  1844.  He  considered  tha  the 
statute  prescribing  the  length  of  his  term  and  the 
salary  he  was  to  receive,  constituted  a  contract  w.th 
hi,u  which  the  State,  by  the  subsequent  law  reducing 
his  salary,  and  turning  him  out  of  office,  could  not  im- 
pair. But  he  failed  to  persuade  the  court.  Ihc 
contracts  designed  to   be  protected  by  the  Const.tu- 


^m 


LIFIED. 


CONSTlTrTIONAL   CASKS   snilMIKlKD. 


2M 


ICES. 


AN  I  A. 

;^.  Mr.  Butler  was 
isylvania  a  Canal 
late,  uiuler  a  law 
•venior  to  appoint 
,(«   terms   of  office 
bY'hriiaiy  in  every 
lid  be  lour  dollars 
L'cptctl    the    office, 
1  April  of  the  same 
ary  to  t  hrec  dollars 
ifter  the  following 
Id  he  elected  hy  the 
1  the  election  came 
he  had  to  step  out 
ididate. 

his  treaiment,  hut 
day  as  of  old,  from 
sseil  till  the  end  of 
considered  that  the 
'  his  term  and  the 
ed  a  contract  with 
]uent  law  reducing 
office,  could  not  im- 

thc  court.     ''The 
sd  hy  the  Constitu- 


tion," said  the  Supreme  (\)urt,  "  are  contracts  l)y 
which  perfect  rights,  cerlain  dcrtnilc,  fixed  private 
rights  of  pioperty  are  vested.  These  are  clearly  dis- 
tinguishable from  the  measures  or  engagements  adopted 
or '^undertaken  by  the  body  politic  or  State  govern- 
ment for  the  l)enetit  of  all,  and  from  the  necessity  of 
th.  case,  and  according  to  universal  understanding,  to 
be  varied  or  discontinued  as  the  public  good  .shall  re- 
quire." , 

The  principle  decided  in  this  case  was  an  important  one.  Tin- 
court  was  called  on  to  answer  this  question,  wliether,  when  the 
I.eRislature  has  created  an  ottlce  with  certain  salary  and  emoluments, 
and  a  person  hasheen  appointed  to  the  ofllce  under  the  law  for  a  cer- 
lain term,  and  Is  fuUllling  its  duties,  a  subseciuent  Legislature  can 
abolish  the  office  before  his  term  expires,  or  reduce  the  salary. 
Baldwin  v.  Pennsylvania  decides  that  it  can,  provided  there  Is 
nothing  in  the  State  Constitution  which  prohibits  such  a  law,  for 
the  first  statute  is  not  a  "contract"  within  the  Federal  Constitu- 
tion. 


tm 


2;i2 


CONSTITrnONAL   CASES   SlMI'MIIKl). 


A  LICENCE  SOT  A  CONTRACT. 


STONE  V.  MISSISSIPPI. 

[11  Otto,  H14.] 

Thiiijis  are  often  tolerated  in  ii  roniniunity  for  years, 
when  all  at  onoe  the  people  hcconK^  ,.u(klenly  virtuous 
and  abolish    with    jrieat  indijrwation    something  that 
had    not   before   that  appeared    to  bother   anybody. 
When,    in     1H67,  the    Mississippi  Agricultural    and 
^^lnufaeturin^  Aid  Society  were  granted  by  the  Legis- 
Intiuo  the  riglitto  run  a  lottery  in  the  State  for  twenty- 
five  years,  the  people  of  Mississippi,  as  represented  by 
the   Legislature,  evidently  did  not  see  any  particular 
harm   in  gaiiios   of  chance.     In  consideration  of  this 
.rrant  the  company  paid  into  the  State  treasury  $5,000 
and  an  annual  tax  of  $1,000.     In  1870,  however,  the 
spasmodic  return  of  virtue  came,  and  the  State  passed 
a  law  prohibiting  all  kinds  of  lotteries  within  its  limits. 
The  company  objected  to  being  suppressed  under  this 
law,  alleging  that  tliei.   charter  constituted  a  contract 
on  the  part  of  the  State  to  allow  them  to  run  a  lottery 
for  twenty-tive  rears  in  consideration    of  the  $r),000 
and  the  $K<>t>()'a  year;  and  that  this  could    not  be 
idmx'iited  1)V  the   Slate. 

But  the  court  said  (1)  that  the  State  had  made  no 

.'  contract  ;  "   it  had  only   granted  a  "  license  ;  "    (2) 

(  that  no  Legislature   could  bargain  away   the   police 

\  power  of  the  Stato,  and  lotteries  fell  within  that  power. 


^im 


MKIKI). 


RACT. 


PI. 


munity  for  years, 
Micklpnly  virtuous 
something  that 
bother  anybody. 
Agricultural    and 
ited  by  the  Legis- 
;  State  for  twenty- 
as  represented  by 
jee  any  particular 
isideration  of  tliis 
te  treasury  $5,000 
^70,  however,  the 
i  the  State  passed 
(s  within  its  limits, 
pressed  under  this 
itituted  a  contract 
m  to  run  a  lottery 
ion    of  tlie  $5,000 
this  could    not  be 


COXSTITIjTIONAL   casks    HIMI'MKIKl). 


■j:i:\ 


Therefore,  the   company  must  go  under,  for  IIk;  law 
ubulishitig  it  was  valid. 

The  llrst  point  decUk-d  in  Stone  r.  Mississippi  is  also  very  Import- 
ant. The  principle  decided  there  Is  that  a  license  from  the  State  au- 
thorizing a  person  to  do  an  act  which,  but  for  such  license  would 
be  forbidden,  does  not  constitute  a  contract  between  the  State  and 
such  Individual  widch  tlie  State  may  not  repeal  or  modify  at  Its 
discretion.  Licenses  to  sell  spirituous  liquors  are  a  good  illustra- 
tion of  prlvileses  of  this  character.  They  are  permissions  to  sell 
liquor,  to  carry  on  a  trade  which  is  prohibited  to  persons  not 
having  licenses,  and  this  privilege  may  be  withdrawn  by  the  State 
at  any  time. 

The  second  point,  i.  e.  that  relating  to  the  police  power  of  the 
State,  Is  considered  at  more  length  in  a  subsequent  chapter. 


State  had  made  no 

II  "  license  ;  "    (2) 

I  away   the   police 

within  that  power. 


^■MHM 


231  CON 


{9TITI:TI0NAI,    casks    SIMPMFIKn. 


CUAIiTERS  TO  PRIVATE  CORPORATIONS. 

PARTMOVTH  COIXEOE  v.  WOODWARD- 

[4  Wheat.  518.] 

N„,  ion-  1M-I"n<  tiK-  liev.,l„li.,u  and  the  Doclarn.ioi, 

,M    1     cmcn,-o(it  w:>«  «1..-  (icorgolll.,  w„»  Kn,g..l 

','  t     hoCn-wn  ...anlol  a  charter  ine„rpo,alu>g 

::;::t;::  ;:^t*.';*,™.^n.«.o.u,eLc.. 

,  ;         oribe  state  of  New  Han.p'W"  l"'"-*."        " 
;  X  i.,..  this  ehartor  in  ,„a,,v  m>,...,ta,,t  l'"rt'-'  "    • 

'■'Tr<,,K.stio„wa..vhe,lu.,..lK.  State  eo„l,l  ,10  tW, 
,,J.,;S,n,..e.eO^ 

^,  '       te';  a,„/.t>e  cVow,,  (to  who.e  ■■t","     " 
V  «•  TLininshire  succeeds)  were  the  panics. 
7;"n   ™  ..■  e      «*  on  a  va.ual.W  eo,„ide,a.i.,n^ 
I,    ,»   ,.   •'"""■'"  ,eeuiily  an.l  disposition   of 

',:::i':  ,r,.e,» ,   ..  e      te  ...:  .«„  ....veyed  to  the  cov- 
1;;;!'    Uis.honaeo,,tnK..ithi„.he.e,tc,.o.th. 

Constitution  and  within  its  spint  also. 


*m 


FIKD. 


CONSTITITION  AI.    TASKS    SIMPLIFIED. 


>.]:> 


ORATIONS. 


>ODWARD. 


the  Declaration 
III.,  was  Kill}?"*' 
er  ineoiporating 
e,  specifying  the 
le  to  elected  and 
ihould  have,  and 
n  IHK;,  the  Leg- 
ire  passed  a  stat- 
,rt ant  particulars, 
giini/.ation  of  the 

iite  couUl  do  this, 
I  could  not ;  for  a 
(aid  Chief  Justice 
which  the  donees, 
36  rightH  and  ohli- 
wcre  the  parties. 
hU>  consideration, 
md  disposition   of 
security  of  which 
nveyed  to  the  cor- 
in  the  letter  of  the 

iO." 


THE  PLANTERS  HANK   v.  SHAItr. 

[(!  How.  MOl.] 

In  1830,  the  Lciiislaliiiv  of  Mississippi  chartered  the 
Planters'  Hank.  The  charter  gave  the  hank  power  to 
possess,  receive,  retain  and  enjoy  lands,  goods,  chat- 
tels and  ellects  of  what  kind  soever,  nature  or  «iualily, 
and  the  same  to  giant,  alien  or  dispose  of  for  the  good 
of  the  bank.  A  sultse(]iieiit  Legislature  of  the  Slate 
jyassed  an  a<t  forl>i«ldiiig  every  hank  in  the  State  from 
transferring  any  note  of  other  evidence  of  deht. 

The  last  statute  was  held  void  because  it  imi»aired 
the  obligation  of  a  contract. 

Ne  more  iiiiporluiit  cii.so,  nono  more  far-reneliiiig  in  it»  results, 
has  probably  ever  been  ilecidetl  l)y  ii  jiidieial  tribnnal  than  llie 
Dartmouth  College  Case.  It  laid  down  a  ^reat  rule  of  Constitu- 
tional rifiht  which  every  day  is  becominf;  of  wider  applieation.  Its 
name  is  familiar  to  thousands  of  laymen  w  lio  have  l)ut  a  faint  Idea 
of  what  It  really  was.  Tlie  name  of  tiie  great  American  Cliief  .lus- 
lice  will  always  be  assoeiateil  with  it,  and  for  acute  rea.soning  and 
logic,  great  learning,  and  grand  judicial  eloquence,  it,  like  many 
others  of  the  judgments  of  that  great  jurist,  has  never  been 
excelled,  if,  indeed,  it  has  ever  been  e(iualled.  But  every  year  it 
is  appearing  clearer  that  in  this  instance,  he,  and  those  judges  who 
concurred  with  him,  made  a  mistalvc.  Tlic  courts  of  several 
States  have  refused  to  commit  themselves  to  its  doctrines,  and  it 
has  required  the  power  of  the  Supreme  Federal  tribunal,  which  has 
thus  far  adhered  to  the  principle  which  the  Dartmoutli  College  Case 
decided,  to  enforce  its  rule.  And  in  the  court  iu  which  Maksiiai.i. 
once  presided,  there  is,  to-day,  a  strong  opposition  to  the  principle 
which  the  Chief  Justice  had  so  great  a  share  in  declaring. 

That  principle  is  that  the  charier  of  a  private  corporation  is  a 
contract,  the  obligation  of  which  the  State  may  not  imi.air.  This, 
notwithstanding  much  dissent  has  been  reiterated  in  so  many  deci- 
ions,  (not  a  "  current,"  but  a"  torrent"  of  authorities,  as  remarked 
by  a  Pennsylvania  judge) ,  that  it  can  hardly  now  be  (luestioned.  And 
the  Supreme  Court  of  the  Unite!  States  has,  in  subse(iuent  cases, 


23(5 


CONKnTlTIONAI,    TASKH    SIMI'I.IFIKD. 


^jDiii'fViMi  further  in  thin  directloD,  and  has  (Iciiilt-d  that  not  only 
those  (ranchlM's  wliicli  are  granted  for  the  aceonipUshnient  of  the 
jiciicral  purposeii  of  the  corporation  are  protected  by  the  Constltu- 
llou,  but  all  the  collateral  stipulations  which  are  Inserted  In  the 
charter,  but  which  are  not  necessary  for  the  accomplishment  of  Its 
general  deslRn,  are  equally  protected.  On  this  point  see  tlordon 
r.  Th«  Appeal  Tax  Court,  and  Woodruff  r.  Trapnall,  post,  p.  2;J7, 


IUKD. 

billed  tlmtniit  only 
)iiipllMtiinfnt  of  th*' 
;d  by  tlif  CoiiNtltu- 
are  InserU-d  In  tin- 
•oraplislmiciit  of  Its 
«  point  see  Gordon 
nail,  post,  p.  237. 


consthttidnal  «Afsi:s  mmi'iiiilo. 


COLLATKUKAI.  STIJ'I  LJTIONS  /JV  I'lUVATE 
CIlAiniHiS. 


GORDON  \.  THK  AIM'KAl.  TAA  <  OVRT. 

[:i  llow.  Hill.] 

Ill    1H()4,   tlic    I^iiiisliituro    ol'   MaiyliUKi   tliarttMtMl 
scvcnil    l»imk^,  iinioii;,^  tliciii  tlit-   I'liioii  Hiiuk.   whose 
<li:uti'r,uii(lc'rtli<'  act,  was  t(»  run  until  1HH>.     In  1^21, 
tho    Lcjrislatuic  passed  an   a<t  continuing'  the  lia^iks' 
cliartors  to  \Mh,  upon  cuiulition  thattlu\v  wouhl  l>uil(l 
a  certain  puhlic  road  and  pay  a  ct-rtain  sciiool  tax  — 
tlie  .statute  declarinjr  that  if  any  of  tii."  hanks  accepted 
and  complied  with  tlie    terms    and  conditions  of  the 
act,  the  faith  of  tiie   Stuto   was  pledijfed  not  to  iinpo.se 
aiiv  further  tax    or  hurden    u[)on  them.     Tiie  I'nioii 
Bank  built  its  share   of  the   road  an.l  i)aid   its  school 
tax.     But  the  Maryland  law-makers  were  not  .satistied, 
Bank.s,    they    arjjrued,  were    rich,   and    able   to  stand 
Mhnost  anvthinjr,   nnd   so  in   l«4l  they  passed  a  law 
taxiuir  all  hunk  stocks,  and  the  assessor  proceeded  to 
collect  this  tax  from  the  stockholders  of  the    Union 
Bank.     He  had  no  success,  however,  for  the  Supreme 
Court  decided  that  the  statute  of  1821  was   a  contract 
exempting   the    stockholders  of  the  bank    from  any 
lax   on  their   stock,  which  no   subsequent  act  of  the 
State  could  abrosrute. 


■i 


•j;;h 


(  ONMIII    IK'NAI,    <  AM.H    MMII.IMK1>. 


1  111  iii>\v.  r.i'i.) 
Tliis  is  !i  storv  ill  six  cliiiptors. 

(IIAITKU   1. 

A  Still*'  L«",i:i>li>liin'  iiicor|)nr!\lcs  ;i  l.iiiiiv.  T!if  Slato 
is  tlic  Stnlt'  o\'  AikMiisiis,  \hv  l.iiiik  is  call.'d  lli«  BaiiU 
,,r  il„.  Slate  ol'  Arkansas.  Ono  socliou  of  tlio  act 
,„.,„, H.iatin,!,'  the  l.ank  provides:  "The  hills  ami 
notes  of  said  institution  shall  he  received  in  all  pay- 
ments nlMehtrt  dno  to  the  State  of  Arkansas."  All  this 
is  in  tlie  vear  ofonr  l<or(l.  1h;}»;. 

ClIAlTKIt    II. 

The  llonorahle  William  Woodrutl'is  Treasurer  of  the 
Stale  of  Arkansas.  The  llonorahle  Mr.  WooilrntV,  to 
M'curoth.^  faithful  perfm-mam-o  of  the  duties  of  his 
hi-rh  otllce,  e.veeutes  to  the  State  a  »)ond  with  sureties. 

ClIAITKUlIl. 

The  Honorahle  Mr.  Woculruir  does  not  perform  his 
duties  as  !i  State  Treasurer  should.  Ho  omits  to  turn 
over  to  the  State  |;5,()00  which  he  has  collected,  and 
jndirnicnt  is  ol)tained  against  him  for  this  amount  and 
"eosrs.  The  whole  amount  is  $;?,7.').')  ;  the  time  is  the 
vcar  IHU).  ^ 

(IIAITKK  I\  . 

Men  may  come  and  men  may  go,  hut  legislators 
goon  making  laws  forever.  It  is  now  a.  d.  1845. 
The    Le-Mslature    of  Arkansas  passes    an   act    which 


MK1>. 


LI.. 


coNv-TiTi  rioNAi.  (  .\>i;s  siMi'i.irii;i). 


.';{!• 


iiU.    'ni.-siiiio 

iillfd  lIu!  BiiiiU 
iou  of  tlio  act 
Tlio  l)ills  iiiitl 
ivfd  iit  all  pay- 
isas."     All  this 


i'leasurcr  of  the 
r.  WooilrutV,  to 
(•  iliitics  of  his 
(I  with  suii'ties. 


not  perform  his 
lo  omits  to  turn 
4  collected,  and 
hid  amount  ami 
the  time  is  tin' 


,  but  legislators 
n)\v  A.  D.  1845. 
s    an   act    which 


declares  that  herealler  nothinjr  >hall  he  nCfived  in 
liaynn-nt  hv  the  Stal«'  hnl  'par  funds.  'I'he  nntcs  ol 
the  Hank  of  tin-  Slate  of  Arkansas  are  not  ju>t  now 
'»  par  luuds  "  l»y  a  L'ood  deal. 

CllAl'l  f.U  V. 
One  day  in  IMT.  the  llnnorai)le  .Mr.  WoodrulV  is 
interviewt'd  l>y  ihr  >h<rilf  on  the  suhjcet  of  thejudjx- 
meut  f«>r  |3,75r..  llo  expresses  a  di-sire  to  pay  it, 
and  takes  out  his  pocket-hook.  The  sherilV  discover- 
ing that  the  money  is  all  in  Arkansas  State  Bank  hills 
([Uotes  the  act    of  lxi'>  and  refuses  to  aeeept  them. 

("HAITI  I!   \'l. 

The  llonoralile  Mr.  Woo(lrutrai)peals  to  the  Supreme 
Court  of  the  United  Stales,  an<l  that  tril)unal  says  that 
the  sheriil  must  tak<'  the  Arkansas  Haidc  hills  in  .satis- 
faetinu  of  the  Judgment.  Why?  lieeaiiso  the  under- 
taking of  the  State  in  the  act  of  LSi^O  to  receive  the 
notes  of  the  hank  eon.stituted  a  contract  l)etwecn  the 
State  ami  the  holders  of  the  notes,  which  the  Stat«' 
could  not  hreak.  Bid,  (»f  course,  notes  issued  l>y  the 
hank  after  the  act  (d'  1H45  were  not  within  the  contract, 
and  might  he  refused  l)y  the  State 

There  is  consUleniblf  (HhcussIou  iiow-a-day.s  upon  tlic  way  in 
wliicli  corporations  are  be{,'li'"i"«  t"  "run"  this  country,  it.s 
li'tiislators,  and,  in  some  few  instances,  its  juilges.  Tlie  principle  of 
llie  Dartmoutli  Collejie  C:ase  Is  one  {jreut  lever  on  which  all  mon- 
opolies are  able  to  work ;  but  even  since  th?n  they  have  obtained 
further  privileges  in  .such  judicial  <lecif>ion.s  as  the  two  iibov.-.  The 
Darinouth  College  Case  simply  decided  that  the  grant  of  a  franchise 
liy  the  State  to  a  corporation  by  means  of  which  the  latter  is 
enabled  to  pursue  and  accomplish  the  general  objects  of  It.i  creation 
is  a  contract  giving  rights  which  the  people  can  never  resume.    But 


240  coNS-rmrnoNM.  <  a^ks  .s.m.m.k.k... 

♦  vvn  ,-n*i"*  Is  tliut  all  the  collateral 
the  principle  of  the  above     >vo     -  s        t  ^^^  ^^^^^^^ 

stipulatlouH  which  have   been   inscrte 

»>^'^^^'^-  .      .       „,„f    i>,„nerov's  language,  in  his  Hand- 

ltaUetlK.liberlyofusu..JroLl>.^^^^^^^^^^ 

book  oa  C."-^'  "  ';';'^,^  '.  ^The  collateral  stipulations  of  this 
this  extension  of  the  ^l'^''^*'"'' •,,'.'  inserted  in  charters,  may  be 
character  -ir.ch  have  been  ..neraU^^h^  ^^^^^,^  ^^^^^^  ^^ 

grouped  in  two  classes  ^^J^.^.^I'^^^,,,,  ^igh.  of  eminent  domain, 
taxation.  -^  t,,ose  wh.ch  1  m^^^^^^^^^  ^,,, 

Tolll'.strate:  if  a  ^^ate  suou  a  ^  ^^,^  ^^^t  the  rate  of 

banking  franchises,  '^n'\^^°"\^'  \t „  sllui  never  exceed  a  certain 
taxation  Imposed  upon  ff  J-^^  '^t.^rinl orporatc  a  toll-bridge 
specitled  --""  ,;;;vl:ryTancbiscs  necessary  to  enable  the 

company  with  *'»«  "'''™  „'  ^  bridge  at  a  certain  place,  and 
corporation  to  erect  and  mamtan  a  bmg  ^^^^^^^^^ 

to  take  tolls  thereon,  -^f  ,f  ""'^^^^l^'^  .^cted  within  certain 
.leclaringthat  no  o*'»-'-/''-'f^,:.^°"*t''iru;t  neither  of  these 

'^^--^^-^^^^'^::z:::^io^^^^^  -d  ti.  acc..- 

stipulations  wo'Ulbe  ncccs.ary  corporations.    The 

pUshment  of  the  "'^J''';f,;„^,*„'^',  banking  business  without  any 
bank  might  carry  on  all  ''^P'^">''Jf^,„  " ,' ,^^  b,e  to  it;  the  bridge 
limitation  upon  the  rate  of  '^-^l^e^ltrTZl  and  collect  tolls 
company  might  build  -f;-;:^^         et  a  doz'en  rival  bridges. 

''^  ^"?or  M  T^  >-  tt:;t;«M  have  the  effect  if 
corpon-tlon  f^^'^^J'^^^^^,^  ,,,«  ^nportant  functions  of  the 
operative,  to  limit  and  ^^^^^  ^^  ^^^^^^,  d„„„„. 

State  government, -tha.ot  ™  .    ^^  ^  ^^^e  Legislatures; 

Cana  State  ^^^f^:^Z^^:^:^^ef:.or^rJ.  between 

:;;^t:ir;.:r';;:pr;mndthus  with^  the  protection  of 

the  united  St.Ucs  ConsmutK,,^?'^  ^^^^^^^^^  ^     ^^.^^^^.^  ^„, 

Gordons.   The   Aipeal    lax  ^'""  .    .,       fli,.n,atiye.    From 

other  cases  since,  answer  these  f  ««\^""^  "  "^^TI'  e,  „„rt8,  which 
tuis  doctrine  there  has  '>-"  ™--\^;27XVo;eS  so  far  ^s  they 
have  argued  that  the  States  are  ab«olutdy    °^^^^^^^^^^  j^overnment; 

have  not  parted  with  that  ««^*=^«  ff  y*"  \';",  ^/^  lets  of  taxation 
that  they  are  absolutely  sove^relgnove.  the  .^^^^^        ^^^^^^^^^^^ 

and  eminent  ^'--^^^2X^<?,^Z^7Zo^^  ^^^^^^^  a  subsequent  Legi«- 
their  sovereignty ,  one  Legislature  cauuu 


■^: 


.IKIKI). 

it  all  the  collateral 
charter  are  equally 

iiguage,  in  his  lland- 
uinfi;  tU'J  meaning  of 
il  stipulations  of  this 
1  in  cliarters,  may  be 
the  State's  power  of 
ht  of  eminent  domain. 
1  bank  with  ordinary 
larter  that  the  rate  of 
never  exceed  a  certain 
)rporatc  a  toll-bridfje 
essary  to  enable  the 
t  a  certain  place,  and 
lause  In  tlie  charter, 
rected  within  certain 
1  that  neither  of  these 
itence  and  the  accom- 
,-e  corporations.    The 
business  without  any 
able  to  it;  the  bridge 
icture,  and  collect  tolls 
a  dozen  rival  bridges, 
sions  in  charters  m'.C^t 
rcous  to  the  particular 
uld  have  the  effect,  if 
irtant  functions  of  the 
,hat  of  emiuent  domain, 
all  future  Legislatures ; 
luses  contracts  between 
ithia  the  protection  of 

)odruff  r.  TrapnaU  and 
n  the  afllrmative.  From 
a  the  State  courts,  which 
sovereign  so  far  as  tbay 
the  general  government ; 
the  subjects  of  taxation 
n  they  cannot  relinquish 
bind  a  subsequent  Legis- 


CONSTITUTIONAL   C.VMIS    SlMl'LIK IKD. 


■2A\ 


lature  on  these  subjects  since  the  subsequent  Legislature  as  much 

epresent    the  sovereign  people  an.l  holds  all  Its  so-ere.gn  powo  s 

as  the  former  did.    But  ti>ese  arguments  have  been  unava.l.ng  .a 

the  Supreme  Court  of  the  United  States. 


Id 


■AmmMmhUH 


242  CONSTITUTIOXA..    CASKS    SlMl'LIKIKD. 


CONTRACTS  NOT  IMPLIED. 


THE  CHAllLES  KIVEB  BRIDGE  V.  THE 
WARREN   BRIDGE. 

[11  Pet.  420.] 

The  Charles  Riv  r  Bridge  Company  was  incorporate.! 
by  the  Massachusetts  Legishiture  and  given  power  t. 
erect  and  maintain  a  toll-bridge.  Subseqnently  the 
Warren  Bridge  Company  was  chartered,  and  autaor- 
ized  to  build  a  free  bridge  a  very  short  distance  from 
the  lirst  structure.  This  was,  of  course,  destruction 
to  the  Charles  River  Bridge  Company,  whose  right  to 
collect  tolls  was  what  made  the  franchise  valuable. 

The  Charles  River  Bridge  Company  tried  to  prevent 
the  building  of  the  Warren  Bridge,  claiming  that  with 
their  franchise  there  was  an  implied  contract  that  the 
Lcnslaturo  would  not  interfere  with  it  in  this  way. 
But  the  court  said  that  as  there  was  no  express  contract 
nothing  could  be  implied  and  the  Warren  Bridge  might 
V)c  built. 

A  luilf  a  loaf  is  better  than  no  bread,  and  the  people  have  some- 

tui^^'To  be  tUanUui  for.  after  aH.    The  ^^^^^^^l^^^^fJ^^T 

.rone  uuite  as  fH,  as  corporations  asked  them  to  go.    They  lad  de 

"       ,      u  .  harters  of  private  corporations  are  contracts,  and  that  all 

T    Zrl^^tion.  contained  in  such  charters  are  also 


1 


.1). 


CONSTITUTIONAL   f'ASKS   SIMl'LIFIKD. 


24.") 


V.  THE 


t  incorporated 
veil  power  t* 
seqiiently  the 
,  uud  author- 
distance  from 
ie,  destruction 
vhoso  right  to 
e  valuable, 
•ied  to  prevent 
ning  that  with 
itract  that  the 
it  in  this  way. 
press  contract, 
n  Bridge  might 


people  have  some- 
il  courts  have  not 
go.  They  had  de- 
ntracts,  and  that  all 
h  charters  are  also 
ley  were  asked  to  go 
[hts  to  corporations 
ressly.  But  the  Su- 
wn  somewhere,  and 


that  this  was  aboutthe  place  to  draw  it,  and  tliey  laid  itdown  that 
tlie  charter  is  to  be  construed  most  strongly  against  tlie  grantee  and 
that  no  rights  which  are  not  expressed  ir  =♦  can  ariic  under  it  by 
mere  implication. 

Providence  Banlc  v.  Billings,  ante,  p.  162,  was  an  earlier  decision 
in  wliichthe  same  principle  was  established. 


244  CONSTITUTIONAL    CASES    SIMPLIFIED. 


MUNICIPAL  CORPORATIONS. 


EAST  HARTFORD  v.    THE  HARTFORD 
BRIDGE    CO. 

[10  How.  511.] 

A  town  was  given  the  right  to  niaintau.  a  feny  across 
a  vivev.  Aftei^vards,  by  several  hiws,  the  State  fiist 
granted  one-half  of  the  ferry  privilege  to  another  town, 
and  llnally  ordered  it  to  he  discontinued  entire  y.  Ihe 
;;;!  went  to  law,  but  got  no  redress,  or  the  cour 
held  that  M  grant  to  a  mrcmcipal  corporation  ,s  not  a 
contract,  but  is  a  law  for  the  public  good. 

Municipal  corporations  arc  created  as  nccessrry  convemences  lu 
L   ..n.i  hold  their  powpvs  and  vrivilegex  subject  to  legisla- 

-r::rp"r^rw.eUt.e.^;eno^^ 

which  can  be  attached  and  »-'^^' ;"/;; ^^^  ^^^^^^^^^^^ 
ally,  the  doings  between  them  and  the  Legislature  are  m 

^/legislation  rather  than  -^J)"; -^^^^Veeo  s^^-^^ 
latlve  conditions  just  named,  and,  theretoie,  to  o 


:>. 


FORD 


CONSTITUTIONAL    CASKS   SIMPLIFIED. 


24") 


hi"h  school  l)i.ihUng.  Afterwards  the  Legislature  passed  a  law  or- 
derin-,'  a  po-uoii  of  this  money  to  be  used  for  purchasing  a  site  for 
a  Statue  normal  school.  Tlie  statute  was  declared  void.  "  As  to  all 
matters  pertaining  to  vested  riglits  of  property,"  said  the  court, 
'•wliethcr  real  or  |-ersonal,  and  to  the  obligation  of  contracts, 
municipal  corporations  are  as  much  within  the  protection  of  the 
Federal  Constitution  as  private  individuals  are.  The  Legislature 
cannot  divest  a  municipal  corporation  of  its  property  without  the 
•nsent  of  its  Inhabitants,  nor  impair  the  obligation  of  a  contract 
entered  into  with  or  In  behalf  of  such  corporation.  State  v.  Ilaben, 
21'  Wis.  060. 


feri'3'  across 
B  Stiito  first 
iiother  town, 
itirely.  Tlie 
or  the  court 
tion  is  not  a 


conveniences  in 
object  to  legisla- 
)lngs  of  the  Leg- 
KY,  in  the  above 
liau  as  contracts. 
s  those  interests 
ig  mere  organiza- 
r  public  powers, 
ment  by  the  Leg- 
t  private  objects. 
y  only  for  public 
lor  joint  partners 
ivise  to  others,  or 
;s.    Hence,  gener- 
i  are  in  the  nature 
to  all  the  legis- 
be  considered  as 

)ration  is  entitled 
.  City  of  Oshliosh 
pose  of  erecti'ig  a 


24(? 


CONSTITUTIONAL    CASES    SIMPLIFIED. 


WHAT    LAWS    IMPAIR    THE    OBLIGATION    OF 
CONTRACTS  — INSOLVENT  LAWS. 


STURGES  V.  CROWNINSHIELD. 

[4  Wheat.  122.] 
Crowninshield  was   sued  in  Massachusetts   on  two 
promissory  notes  made  by  him  in  New  York,  on  March 
22,  1811,  payable  in  Augu.st  of  the  same  year.     He 
replied  that  he  had  been  discharged  on  February  15, 
1812,  from  all  debts  by  a  New  York  court    under  an 
uisolvent  act  of  tl>e  State  of  New  York^    -  When  was 
that  insolvent  act  passed?"  asked  the  Supreme  Court. 
..  On  the  third  day  of  April,  1811,"  answered  Crownm- 
shield      "Then  the  law   impairs  the  obligation  ot  a 
contract,"  said  the  court,   "and  it  cannot  help  you. 
A  contract  is  an  agreement  in  which  a  party  under- 
takes to  do  or  not  to  do  a  particular  -thing.     The  law 
binds  him  to  perform  his  undertaking,  and  this  is.  of 
course,  the  obligation  of  his  contract.     In  the  case  at 
barCrowninshield  has  given  his  promissory  note  to  pay 
the  plaintiff  a  sum  of  money  on  or  before  a  certain  day. 
The  contract  binds  him  to  pay  that  sum  on  that  .ay, 
and  that  is  the  obligation.     Any  law  which  relea^.s 
apart  of  this  obligation,  must,  in  the  literal  sense  .f 
the  word.  im.pair  it.     Much  more  must  a  law  nnpair  . . 
which  makes  it  totally  invalid,  and  entirely  discharges 

Having  seen  the  cases  which  decide  as  to  what  are  "  contracts  " 
wHhTn  tL  Constitutional  provision,  the  foregoing  case,  and  the  fol- 


CONSTITUTIONAL   CASES   SIMPLIFIKD. 


247 


ATION    OF 

iWS. 


D. 


etts   on  two 
•k,  on  March 
e  yeiir.     He 
i'ebruary  15, 
rt,  under  an 
«*  When  was 
ireme  Court, 
red  Crownin- 
iliorution  of  a 
lot  help  you. 
party  under- 
iiiT.     The  law 
lid  this  is,  of 
;n  the  case  at 
ry  note  to  pay 
a  certain  day. 
L  on  that  .lay, 
vhich  releab-iS 
iteral  sense  i^f 
,  law  impair  i*; 
ely  discharges 

are  "contracts" 
case,  and  the  fol- 


lowing, are  presented  to  answer  the  second  question,  viz. :  What 
kinds  of  laws  Impair  the  obligation  of  contracts  within  the  same  j/ 
section  of  the  Constitution.    '«  This  question,"  says  Mr.  Pomeroy, 
••  is  one  not  easy  to  an.swer  In  Its  full  extent.    There  may  be  some 
State  statutes  which  plainly  and  unequivocally  have  the  injurious 
effect,  concerning  which  there  is  no  room  for  argument.    There 
may  be  others  which  as  plainly  and  unequivocally  do  not  have  the 
Injurious  effect.    Between  these  two  extremes  tliere  are  liluds  and 
classes  of  laws  concerning  which  there  may  be  a  doubt,  there  may 
be  room  for  argument,  for  difference  of  opinion  among  legislators 
and  ludges.    When  we  attempt,  therefore,  to  lay  down  general 
principles  which  shall  be  absolutely  inclusive  and  exclusive -in- 
cluding all  laws  which  are  obnoxious  to  the  Constitutional  provision, 
and  excluding  all  others- we  shall  find  ourselves  Involved  in  great 
difficulty  "    The  courts  have  found  this  same  difficulty,  and  the 
decisions  on  this  question  have,  therefore,  been  somewhat  conflict- 
ing-the  States  courts  often  taking  one  view  of  the  subject,  the 
Federal  courts  another  and  diverse  view.    The  following  general 
principles  have,  however,  been  pretty  generally  coincided  in  by 
all,  viz. ! 

1  A  contract  may  be  impaired  without  belag  destroyed,  and  if 
this"  is  so,  it  is  as  much  within  the  Constitutional  provision  as? 
though  it  was  completely  destroyed  by  the  obnoxious  law.  The 
Constitution,  as  we  have  seen,  says  that  no  law  shall  be  passed  by 
the  States  which  "  impairs  "  the  obligation  of  a  contract. 

2  The  law  to  be  void  under  this  provision  must  operate  upon  a 
contract  entered  into  before  its  passage.  See  Ogden  v.  Saunders, 
poat,  p.  251. 

3  And  if  before  the  execution  of  the  contract  there  was  any  lavv 
in  force,  giving  the  Legis'ature  the  right  to  modify  it,  or  to  repea 
or  modify  a  charter,  etc.,  a  subsequent  repeal  or  modification  will 
be  good,  for  the  power  thus  reserved  enters  into  and  becomes  part 
of  the  contract  at  the  time. 

4  A  judicial  decision  Is  a  <•  law."  The  obligation  of  a  contract 
cannot  be  Impaired  by  a  change  In  the  judicial  decisions  of  the 
State  courts -the  term  "law"  In  the  Constitution  includes  de- 
cisions of  courts  as  well  as  statutes  of  Legislatures. 

Laws  impairing  the  obligation  of  contracts  may  be  divided  into 
two  classes:  (I.)  those  which  apply  to  the  terms  of  contracts,  (U.) 
those  which  apply  only  to  the  remedy  upon  them. 


248 


coNsTrrirnoNAL  cases  simplified. 


I  A,  to  l<iw»  whkh  ap,>ly  to  thetn-ms  of  contracts,  ih.vo  Is  not 
™„ch  onfusi..n  in  tl.e  d.eisic.us.  The  cas.«  of  this  c.mr.cter  arc 
well  .ummed  up  by  Mr.  Poraeroy  In  these  words :  "  In  re.pect  .o  pr  - 
L.  cnlracts  'between  individuals.  It  Is  so  plain  -  t.>  r-"^e  l.o  u- 
talion  of  ....  authority  to  support  the  proposition  that  ah  bta  o  laws 
operatln,nu,onpastaRreemeuts,andaffectin,al.everytern,sthereo^ 

which  wholly  or  partially  discharge  one  contractlus  party,  withou 
The  conlent  of  the  other,  from  doing  the  very  thing  which  he  agreed 
to  do,  or  which  add  new  stipulations  or  conditions  to  the  agreement 
orthlch  take  away  any  which  were  incorporated  into  It  or  which 
extend  or  shorten  the  agreed  time  for  performance,  or  ^vMch   cnder 
contracts  illegal  or  void,  which  were  before  legal  and  valid,  o 
Which  make  ti;.se  legal  and  binding,  which  were  before  Ulegal  and 
null,  all  such  legislative  acts  would  impair  the  obligat  on  of  exUt- 
mg  contracts  affected  thereby.    *    »    *    In  respect  to  contracts 
between  a  State  and  private  persons,  including  grants  and  chartcrB, 
It  is  equally  plain  that  where  no  power  for  such  purpose  is  ante 
cedently  reserved,  all  statutes  directly  repealing  the  grant  or  char- 
ter, or  in  any  way  modifying  It.  express  terras,  by  cl>'^"S«»g  j^b-^ 
organization  of  a  corporation,  or  by  taking  away  power,s  or  by  add- 
ing new  conditions  or  duties,  impair  the  obligation  of  this  species 
of  contracts."    Pomeroy  Const.  L.  COO.  COl. 

State  insolvent  laws  are  an  illustration  of  laws  of  this  character 
Such  laws  provide  for  the  discharge,  under  certain  conditions,  of 
the  debtor  from  his  debts.  Therefore,  as  decided  in  the  great 
case  of  Sturges  ..  Crownlnshleld.  they  are  void  as  to  debts  created 
before  their  passage,  for  in  releasing  the  debtor  rom  what  he 
agreed  to  do,  they  impair,  or  rather  destroy  the  ob  Igatlon  of  the 
contract  But  as  to  debts  created  subsequent  to  their  passage,  they 
are  valid.    On  this  point  see  Ogden  v.  Saunders,  post,  p  251 . 

II  As  to  laios  which  apply  only  to  the  remedy,  there  Is  more  difficulty 
and  It  is  here  where  the  decisions  of  the  courts  are  not  always 
reconcilable.    Laws  of  this  kind  fall  under  the  following  heads : 

1.  Laws  taking  away  remedies.  A  law  which  deprives  aparty  of 
all  legal  remedies  upon  an  existing  contract  is  void.  But  it  seems 
If  a  person  has  two  remedies,  and  a  subsequent  statute  takes  away 
only  one  of  them  It  is  not  void,  for  he  has  still  the  other  remedy 
left. 

2  Statutes  of  limitation.  A  statute  of  limitation  is  one  which 
prescribes  that  a  person  having  a  right  of  action  s\»all  commence  it 
within  a  certain  time,  and  if  he  falls  to  sue  withm  that  time  the 


»,  there  Is  not 
1  clmructer  aro 
recpect  io  pri- 
I  reotiire  the  ci- 
t  all  State  laws 
'terms  thereof, 
l)aity,  without 
•hlch  he  agreed 
the  agreement, 
ito  It,  or  which 
)r  which  render 
and  valid,  or 
fore  illegal  and 
gatlon  of  exl8t- 
■ct  to  contracts 
t8  and  chartcrB, 
purpose  is  ante- 
j  grant  or  char- 
ly  changing  the 
wer,s  or  by  add- 
ij  of  this  species 

if  this  character, 
n  conditions,  of 
ed  In  the  great 
to  debts  created 
•  from  what  he 
bllgation  of  the 
leir  passage,  they 
est,  p  251 . 

is  more  difficulty 
I  are  not  always 
lowing  heads: 

sprlves  a  party  of 
d.  But  it  seems 
tatute  takes  away 
the  other  remedy 

tion  is  one  which 
shall  commence  it 
hin  that  time  the 


CONSTITUTION AI.   CASKS   SIMIM-IKIKU. 


240 


tutlonal  provision.    If  tliejr  entu  ir*  "     i 

IVt;  talUK  S.  at  time  Is  shorter  than  had  before  existed. 
Ihey  are  vaim  Fo^ran  Illustration  of  this  distinction,  see  Terry  v. 
Anderson,  post,  p.  254. 

3.  LamaboHshing  imprisonment  for  deht.  These,  It  Is  held,  are 
not  void,  they  do  not  at  all  impair  the  obligation  of  contracts.  See 
Mason  V.  Ilalle.post,  p.  2,-.t!. 

4.  Stay  and  appraisement  law..  A  stay  law  is  one  ^vhlch provides 
tliat  execution  or  other  process  shall  not  issue  for  some  definite 
p  rod  of  time  after  the  recovery  of  a  judgment.  An  appraisement 
fawis  one  which  requires  the  properly  of  a  judgment  credl  or 
TeTz  don  execution  to  be  appraised,  and  forbids  it-a  «  *"- P'^ 

less  than  a  certain  portion  of  its  '^PP''^»«'^^' ;;^\7„;  .^  "^J'^Tthe! 
y.  1.4  I..  ♦>,«  Vrxlcral  courts  to  be  unconstitutional  so  f.ir  as  tncy 
;,;  :'  nt::;;t:lt:red  mto  before  their  passage.  ^«  Branson 
«  Kinzie  «os(  p.  257.     But  the  State  court,  tcke  a  different  view 
If'^L  ;;':;;».    Thus,  dunng  the  civil  wr.r,  tUe  Legislatures^o 
Pennsylvania  and   Iowa,  passed  ^t^^^utes  s  ayi^  all  civ     p^o  es« 
a-ralnst  persons  iu  the  military  service  of  the  State  or  tic  United 
States,  for  the  term  of  such  service  and  a  short  Pe^'o^  f  ^^^  fj^ 
The  validity  of  these    statutes  was  contested,  but  the  Supreme 
Surts  o    both   States  decided  that  they  were   unobjectionable. 
Brelten^ach  ..  Bush.  44  Pa.  St.  31H,  McCormlck..  Rusch.  15  Iowa, 
127. 

B  Laws  exempting  property  from  execution.  An  exemption  law 
is  one  rhlcnlve'  a'll  or  abortion  of  a  'debtor's  property  from 
liability  to  be  seized  and  sold  under  execution.  A.,  lor  example 
raui,  a  nromlssory  note  to  B.,  which  he  fails  to  pay,  and  B.  gets 
rd^me^grs  hhn  While  ihesuitis  pending  the  Legislature 
nassesa  law  which  exempts  from  execution  A.'s  tools,  his  house, 
Wshoush!ld  furniture,  and  his  homestead.  Does  such  a  law 
^«pntB's  claim  The  courts  say  yes  to  this  question  when  the 
Imonnt  o?  te"xe Option  is  reasonable.     See  Edwards  ..  Keazry, 

post,  p.  200. 

Stursres  v  Crownlnshield  is  also  a  leading  case  on  another  point. 
The  TnstTtutlor  provides  that  Congress  '- shall  have  power  to 
TtlbUruXm  iLvs  on  the  subject  of  bankruptcies  throughout 


2r)0 


CONSTITUTIONAL    CASKS   SIMl'MFIKD. 


the  United  States."  The  question  arisen  can  the  State  pass  bank- 
rupt or  Insolvent  laws  also?  The  answer  Is  that  the  power  1«  plven 
to  Congress;  but  that  body  may  or  may  not  exercise  this  power. 
When  U  abstains  from  doing  so  the  States  may  lep'slate  on  the 
gubiect;  but  when  ConRrcss  passe,  a  bankrupt  law  the  State  laws 
must  give  way  to  the  National  law.  Should  Congress,  howerer, 
abolish  Its  bankrupt  laws,  then  the  State  law  comes  In  force  again, 
to  become  nugatory,  however,  whenever  Congress  again  sees  fit  to 
exercise  its  power  on  the  subject. 


coNKriTirnoNAi-  <  asks  simi-likikd. 


•2:>\ 


IKD. 

State  pass  bank- 
3  power  1«  plven 
•else  this  power. 

legislate  on  the 
w  the  State  laws 
igresB,  howerer, 
is  in  force  again, 

again  sees  fit  to 


LAWS  I.y  FOncE  AT  THE  TIME  OF  CON- 
TRACT-DOMIC  IL  OF  CREDITOR. 

OGDEX  V.   SAUNDERS. 

[l'_'  WhiMit.  :!".8.] 

Ogden,  who  lived  in  New  Yorlt,  in  Scptcinlxji-,  180(J, 
acceptSa  certain  Wills  of  oxclmnj^'o  iiold  l.y  Saunders,  ii 
resident  of  Kentiickv.  Sul.sequ(>ntly  ho  ohtauied  a 
discharge  under  the  New  York  insolvent  law  of  iHOl.x 
But  afterward.s  removing  to  Louisiana,  ho  was  sued 
upon  these  bills,  and  sot  up  the  New  York  discharge. 

The  court  decided  that  the  New  York  law  beiiuj  m 
existence  when  the  bills  were  accepted  by  Ogden.  did 
not  impair  tho  obligation  of  a  contract,  and  the  dis- 
char<re  was  valid.  Tho  insolvent  act  being  part  ot  the 
law  when  the  contract  was  made,  became  part  ot  the 

agreement.  -  , 

But  on  another  ground  Ogden  was  not  Ro  successful 
The  court  held  further,  that  tho  State  statute  could  not 
affect  the  rights  of  creditors  who  were  citizens  of  other 
States,  and  therefore  could  not  bind  Saunders. 


BAI.DWIN  V.  HAI.E. 

[1  Wall.  223.] 

Boston,  February  21,  18fi*. 
Six  months  alter  date,  I  promise  to  pay  to  the  order  of  myself, 
two  thousand  dollars,  payable  in  Boston,  value  ^'f';^^-^^^^^^^ 

Mr   Hale,  of  Vermont,  as  indorsee  for  value  of  the 
above  note,  brought  suit  on  it  one  day  in  tho  I,  mted 


■4 


2r>2 


CONHrm'TIONAI,    CASES   SIMVLIFIEU. 


States  CiiHM.it  Court  for  tl.o  District  of  Massiiohusott^. 
Mr  BaUlwiu  pIoiuUmI  u  discliurj,'o  iVo.n  all  his  dol.ts  in 
insolvency,  whicli  ho  had  already  oUtained  in  a  Mas- 
Badmsctts  court. 

Mr.  Ilalc  referred  the  court  to  Ogdeu  v.  Saunders, 
hut  Mr.  Baldwin  Haid  that  the  courts  of  Massachusetts 
had  always  held  that  if  the  contract  in  express  terms 
was  to  ho  performed  in  tlio  State  where  tlie  del)tor  re- 
sided, and  where  he  ohtaincd  his  discharge,  the  cred- 
itor, tliough  an  inhahilant  of  another  State,  is  Ixn.nd 
by  it.  But  tl)o  Supremo  Court  of  the  United  States 
said  that  the  Massachusetts  courts  were  Avronjr,  and 
Mr.  Baldwin's  discharge  was  no  defence  to  Mr.  Hale's 
suit. 

The  aecomt  .luestlon  decided  In  Ogdcn  v.  Saunders,  and  the  one 
also  decided  In  Baldwin  t..  lUlc  was  the  following:  Does  the  d  8- 
charge  of  a  d.^Dtor  by  the  Insolvent  law  of  one   State  affect  the 
\  claim  of  creditors  in  other  States?    Three  classes  of  cases,  it  will 
\be  readily  seen,  may  arise  where  this  question  will  have  to  be  an- 
---  Uwered,  vi/-.-.  (I.)  Where  the  creditor  and  debtor  are  Jnhabltants 
\         '  of  the  same  State.     C-'.l  Where  the  creditor  and  debtor  arc  inhabl- 
-         tants  of  different  States.     (3.)  Where  the  creditor  and  debtor  are 
inhabitants  of  different  States,  but  the  contract  is,  by  Its  terms,  to 
be  performed  in  the  State  where  the  debtor  lives.    The  case  above 
decided  that  the  creditor  i»  bound  In  case  1,  but  is  not  bound  in 
cases  li  and  I!. 

1  A  and  11.  are  citizens  of  New  York.  Tlie  New  York  courts 
grant  A.  a  discharge  from  his  debts.  This  discharge  destroys  B.  » 
claim  on  A. 

2  A.  is  an  inhabitant  of  New  York,  C.  of  Kentucky.  The  New 
^ork  discharge  will  not  affect  C.'s  claim.     See  Ogden  v.  Saunders, 

ante,  251.  " -— 

3  A  ,  a  citizen  of  Massachusetts,  executes  a  note  payable  in 
Boston,  which  comes  into  the  hands  of  1).,  who  resides  In  Ver- 
mont.   The  discharge     ^  A.  from  his  debts  by   a  Massachusetts 


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BOI 

bai 


CONSTITUTIONAL  CASES   SIMPLUIKD. 


253 


*„«nPtT>'Bclalai.    The  courts  of  Massachusetts  for 


254 


CONSTITtriONAl.    <ASKS    SlMl'MKIKD. 


STATUTES  OF  LIMITATION. 

TEKUY    V.   ANDERSON. 

[,-.  otto,  (i'js.] 

Bv  llic  1.W  <a' Ueor^i.  up  to  llu.  yo.r  18.;0.  :i  s,nt  to 
enfJfcc  the  liul.ility  of  the  sto.Ul.oUUn-s  ot  a  bunk  lor 
its  debts  was  not  l.arred  until  th.  .xpimt.on  ot  twen  > 
years  from  tlu.tiu.e  the  notion  aocnuHl.     But  u.  l.Sb.» 
'the  Lejri.latur.  declared  that  all  actions  ol  ^^^^^ 
tev,  anu.ni:  others,  whieh  had  acerued  pr.or  to  tho  1st  ot 
Ju,;c.  1865,  should  be  brought  by  tho  1st  ot  .lanuarv 
1H70,  or  the  right    to   sue  would  be   forever  barred. 
Mr    Terrv,  in    1S74,    brought  aii   action  agauist   the 
ussi.nuH.s"of  the   Planters'  Bank,  of  Georgia,  and  was 
n.et^'bv  this  statute.     He  did  not  deny  that  the  statute, 
if  valid,  barred  his  daini,  but  he   argued  that  it  was 
unconstitutional  as  impairing  the  obligation  .i   a  con- 
tract,     lie  argued,  unfortunately  tor  hunselt,  on  the 

wronji  side.  , 

-The  cpurt,"  said  Chief  Justice  \N  aite,  "has 
often  decided  that  Statutes  of  Limitation  are  not  uncon- 
statutional,  if  a  reasonable  time  is  given  tor  the  com- 
„.eneenuMU  of  un  action  before  the  »>=";  '^^^;-J.  " 
feet  •  •  •  It  is  difficult  to  see  why,  if  the  Legis- 
lutu;e  may  prescribe  a  linutation  where  m.ne  ex^ed 
before,  it  mav  not  change  one  which  has  aheady 
been  cstablish'ed.  "  The  parties  to  a  contract  have  no 
more  a  vested  interest  in  a  particular  limitation  which 


COXSTITITIONAI,    CASE!*   SIMPLIFIRD. 


!>.'».'» 


A). 


V. 


8(;9,  :i  suit  to 
of  a  bank  for 
ion  of  twenty 
But  in  1H«9 
of  this  c-harac- 
>i-  totlio  1st  of 
st  of  .liinuary, 
;)revt'r  barreil. 
m  Hjriiinst   the 
()r«:i:v,  untl  was 
lat  the  statute, 
i-a  that  it  was 
tion  of  iv  con- 
limsclf,  on  the 

Waite,  "  has 
\  aie  not  uncon- 
'11  for  the  ooni- 
har  takes  ef- 
ly,  if  the  Legis- 
0  none  existed 
h  has  ah-eady 
ontraot  have  no 
imitation  which 


has  l)een  lixed,  than  tliey  have  in  an  unrestricted  riglit 
to  sue.     They  iiave  no  more  a  vested  interest  in  the 
time   for  the  commencement  of  an   action  than  tiicy 
have  in  the  form  of  the  action  to  i)e  cmumeuced,  and 
aa  to  the  forms  of  actions  or  moch's  of  remedy,  it  is 
velUettled  liiat  the  Legislature  may  change  tlicm  at 
its  discretion,  provided  mh-quate  means  of  .Miforcing 
the  right  remain.     In  all  cases  the  (lucstic  n  is  one  of 
reasonableness,  and    we  have  therefore  only  to  con- 
sider whether  the  time  allowed  in  this  statute  is,  under 
all  the  circumstan.^es,  reasonable.     Of  that  the  Legis- 
lature is  piimarily  the  judge,  and  we  cannot  (.verrule 
the  de.-ision  of  that    liepartment  of  the  government, 
unless  a  i)alpal)le  error  has  l)een  committed." 

And  as  the  statute  in  this  case  gave  over  nnie 
months  on  which  to  sue  upon  a  cause  of  action  which 
had  already  l)een  running  over  four  years,  the  court 
thou-zht  there  was  nothing  unreasonable  in  the  new 
law,  and  Mr.  Terry  lost  his  case. 

statutes  of  Limilatlou,  it  is  .said  in  a  more  recent  case,  are  statutes 
of  roposo.  "They  are  necessary  to  tiie  welfare  of  society.  Tlie 
lapse  of  time  constantly  carries  with  it  the  means  of  proof.  The 
public  as  well  as  individuals  are  Interested  in  the  principle  upon 
which  they  procee.l.  They  do  not  impair  the  remedy,  but  only 
reciuire  its  application  within  the  time  specified.  If  the  period 
li,nited  be  unreasonably  short,  and  desi-ned  to  defeat  the  remedy 
upon  pre-existius  contracts  which  was  part  of  their  obligation,  we 
should  pronounce  the  statute  void."  Edwards  f.  Kearzy,  post, 
p.  --'I'lO. 


2:.ti 


(ONsTiTUTioN.vi-  <A>i;s  snirhiriKi). 


ABOLISHING  lMrJiISOy.yfENr  FUR  DEBT. 


MASON  V    1IAII.E. 

[\-<  WlR'iit.  ^fTii] 

\mon-  tho  riuhls  wh'u-h  a  .•n..lit..r  formerly  l^ul  of 
fcK-di.^  his  aol.torto  pay  up  was  that  .>f  throw.njr  h.m 
into  jail.     I.upriso.unent  for  d.l.t  is  now  pretty  gener- 

yil,olisheai.tlus<.ouMtryJ.utiuL.14.thaano 

eon.     Therefore    it  was,  that    Mr.  Mason     ot  Khocle 
Island,  ^vho  ima  an  obdurate  deht.  r  by  the  nanu3  0 

Iluilo  in  duranee  vih.,  was  not  at      .  sat. sh.l  when  the 

Le.aslature  stepped  in  and  ordered  that  a  d.seharge   n 

i„s:;,v.nev  iron,  all  debts  shouUl  also  diseharge  a  iK.r  y 

.*  frou.   all  in,prisor.nicnt,  arrest,  and   restraint  of  bis 

person  therefor."  .     , 

Mr-Mason,  of  eonrse,  elaimed  that  th.s  law  uninuied  - 
thoobli..UioMofa.ontra..t.  Hut  the  Supreme  Court 
aid  not' think  so.  Such  a  law  aets  merely  upon  the 
romedv,  aud  that  in  part  only.  It  does  not  take  a^^ay 
the  en'tire  remedv,  but  only  m  far  as  Mnpr.sonment 
forms  a  part  of  ■such  remedy.  Lnprisonment  ,s  no 
;,;,.t  <,f  the  oontraet,  and  shnply  to  release  the  prisoner 
does  not  impair  its  ol)ligation. 


CONSTITITIONAK    <ASi:s    SlMn,llll-.l>. 


.)< 


i  DEBT. 


A  PPP  1 TS K yfE NT  LA  WS. 


mcrly  Ii'hI  of 
Llu-o\viii<r  him 
pretty  gener- 
ic it  had  not 
)ii,  of  Kliode 
the  nuiiio  of 
,lie(l  wlu'U  the 
11  disrhiirge  in 
■hargo  a  party 
estraiiit  of  his 

s  hiw  impaired  - 
Hii>riniio  Court 
jrelv  upon  the 
not  take  away 
imprisonment 
8onmeiit  is  uo 
ISO  the  prisonei 


BIIOXSOX  V.  IvINZIK. 

[1  How.  :'.ll.] 
In  IS.iS,  the  hohlcr  ..f  a  Mu.rtgago  on  hmd  in  Illinois 
was  oulitled  i.v  the  huv  of  the  State  to  foreclose  the 
same  immediat"oly  upon  a  broach  of  tl...  cond.t.on   and 
to  have  the  land  sold  al.s.dutely,  and  in  that  year  Km- 
zie  executed  a  mortgage  of  his  lui.d  to  Bronson.     Three 
years  later  the  Leixislature  of  Illinois  passed  a  statute 
providing  that   in  sales  under  a  decree  foreclosing  a 
,norfva-e,  the  debtor  should  have  the  right  to  redeem 
the  iand  withi.i  one  year  after  the  sale  by  payn.g  the 
nurchasc-nionev  an.l  ten  per  cent  interest,  and  that  no 
sale  should  bo  made  until  the  lan.ls  were  lirst  appra.sed, 
.„Kl  unless  they  were  sol.l    for  at  least  two-tinrds  of 
their  appraisci  value.      Shortly  after  this   statute  was 
nasee.1  Kinzio    failed  to    pay  interest  as  agreed,  and 
Bronson  applied  to  have  the  lands  sold  absolute  y  for 
what   thev    would   bring.      But    Kinzio    objected,  and 
said  that 'the  sale  should  bo  ma.lo  subject  to  the  right 
„f  redemption,  and  should  not  bo  made  at  all  it  the  land 
did  not  bring  two-thirds  its  appraised  value. 

The  court  was  appealed  to,  and  it  decreed  m  favor 
„f  Bronson.  The  statute  of  IHU,  it  held,  was  void 
so  far  as  it  applied  to  this  mortgage.  ^^ 

.'  If  tho  law  of  the  State  passed  afterwards,  said 
Chief  Justice  Tanf.y,  "had  done  nothing  more  than 


-j:,,S  (ONSTrri'TlONAI-    CASKS    SIMIM.I  KIKl). 

,ha..ge  tlu,  rcnocly  upon  ronliads  of  X\m  clc«c-yiption, 
they  wouUl  bo  liahlo   K.  no  constitutional  ol>joctum. 
For.  undoubtedlv,  a  Stat-  n.ay  rej,M.late  at  pleusure,  the 
luo.l.s  of  i.n.cc..;iin-  in  its  courts  in  relation  to  past 
contracts  as  well    as    future.     It  n.ay    for   example 
shorten  ll.o  period  of  time  within  wlncn  chn.ns  slml 
],e  barredl.v  the  Statute  ..f  Liniitations.     It  n.ay,  it  it 
thinks  proper,  direct  that  the  necessary  i.nplo.nents  of 
acrricuUure,  or  the  tools  of  the  mechanic,  or  articles  of 
necessity  in  Imusehold  furniture,  shall,  like  weannf?  ap- 
parel, not  he  liable  to  execution  on  judgments 
And  although  the  new  remedy  may  be  less  convenient 
than    the  old   one,  and    may  in  some  degree  render 
the  recovery  of  debts  more  tar.ly  and  aittioult.  yet  it 
will  not  follow  that  the  law  is  unconstitutional.     \\  hat- 
ever  belongs  merely  to   the  remedy  may   be  altered 
uecording  to  the  will  of  the  State,  prorided  the  alter- 
ation d.res  not   impair  the  obligation  ot  the  contmct. 
But  if  that  ellect  is  pro.luced   it  is  immaterial  whether 
it  i.  done  bv  acting  on  the  remedy  or  directly  on  the 
contract  itsJlf.     In  either  ease  it  is  prohibited  by   the 
Constitution.     *     *     «     It    is   ditHcult,    perhaps,    to 
draw  a  line  that  would  be  applicable  in  all  cases  between 
legitimate  altertition    of  the  remedy    and  l>'-"Vision8 
xvhich  in  the  form  of  remedy,  impair  the  right.     But  it 
is  manifest  that  the  obligation  of  a  contract,  and  the 
rights  of  a  party  under  it,  may  in  effect  be  destroyed  by 
denying  a  reniJdv  altogether,  or  may  be  seriously  un- 
paired bv  burdening  the  proceedings  with  new  condi- 
tions and  restrictions  so  as  to  make  the  remedy  hardly 
worth  pursuing.     *     *     *     If  such  rights  (as  given  by 
the  statute  of  1831)  may  be  added  tothe  or.gimU  con- 
tract  by  subsequent  legislation,  it  would  be  difficult  to 


CONSTIIl  TIONAI,    CASKS    SIMI'LIIMED. 


•>')n 


oscviption, 
ohjt'i'tion. 
icii8ure,the 
ioii  to  past 
i-   exainple, 
laliua  shall 
tiviay,  if  it 
)kMnent9  of 
r  articles  of 
wearin}?  ap- 
ts    •     *     • 
convenient 
"Tco  render 
aoult,  yet  it 
iial.     What- 
'   bo  altered 
ed  the  alter- 
ho  contract, 
irial  whetlier 
ectly  on  tlie 
bited  by   the 
perliaps,    to 
•ases  between 
d  provisions, 
ight.     But  it 
•act,  and  the 
destroyed  by 
serionsly  ini- 
,h  new  condi- 
eniedy  hardly 
9  (as  given  by 
1  original  con- 
be  difBcult  to 


say  at  what  point  they  must  stoi).     An  cquitublo  in- 
terest in  tiie  premises  may,  in  liko  manner,  l)0  conferred 
hy  others,  and  the  right  to  redeem  may  bo  so  pro- 
h)ngcd  ns  to  deprive  the  mortgagee  of  tlie  benclit  of  hia 
security  l)y  rendering  tlio  property  unsahible  for  any 
thing  like  its  value.     This  law  gives  to  the  m(n1gagor 
and  to  the   judgment-creditor  an  ecinitablo  estate   in 
the  pnMuises,  which  neither  of  them  would  have  been 
entitled  to  under  the  original  contract,  and  these  now 
interests  are  directly   and  materially  in  conflict  with 
those  which  the  mortgagee  acrpiired  when  the  mortgage 
was  made.     Any  sucli  modification  of  a  contract  by 
subsecpient  legislation,  against  the  consent   of  one  of 
the  parties,  unquestionably  impairs  its  obligations  and 
is  prohibited  by  the  Constitution." 


260 


coNsirrrTroNAi.  casks  .simplified. 


J 


Vt 


EXEMPTION  LAWS. 


EDWARDS  >.  KEARZY. 

[«  otto.  595.] 

Certain  elebts  were  incurred  in  North  Carolina  prior 
to  the  vear  IMS.     In  that  year  a  now  Constitution  was 
adopted  bv  winch  the  personal  property  of  any  resident 
of  the  State  to  the  vah.e  of  $.-.00  was  exempted   from 
sale  under  execution  ;  al.o  a  homestead  and  the  dwel- 
lin..  and  huildini.-  thereon,  not  exceedmg  n.  value  $1,0  )0. 
The    credito;  tried    to    take   these  tilings  from  the 
debtor  to  liquidate  his  demands,  but  the  latter  churned 
them  as  exen.pt  under  the  Constitution.     The  creditor 
,„,,intained    that  the  nesv  law,  being  passed  alter  his 
demands  were  incurred,  impaired  the  obligation  ot  the 
ooutni.t,  and  was   unconstitPilonal.     And  so  thought 
the  Supreme  Court  of  Hie  United  States. 

The  exemption  law  in  this  case  was  heUl  void  by  the  majority  of 

the  court  on  the  ground  that  "  iu  regard  to  the  mass  of  contracts, 

a^d  the  situation  and  circumstances  of  debtors  as  they  are  ord.na- 

HIV   on"o  exist,  it  would  seriously  affect  the  em-ency  of  reme- 

'  il  for  the  collec  ion  of  debts."     15oing  so  it  impaired  the  ob   g-v- 

n  o    the  CO    ract  and  was  void.     Notwithstanding  the  result  in 

;;;:  c  i    t""  -ot  "onow  that  a  Uw  exempting  necessary  wear- 

ngap^and,  ori-nplementsof  agriculture,  or  the  tools  of  niechan- 

cs  or  ar  de«  «^  "^-'^^"^  ">'  ^  '''''''''''''^  nature,  recognized  as 


)lina  prior 
tution  was 
y  resident 
[)te(l    from 
I  tlio  dwel- 
luo  $1,000. 
s  from  the 
;er  claimed 
lie  creditor 
d  after  his 
tiou  of  the 
so  thought 


CONHTITITIONAI.   CASKS   81MI'MK1KI). 


2()1 


article,  and  uteusib  of  ncccsMty.  wouUl  bo  voWl     ^:^^^^l;;^^ 
was  therefore  void. 


he  majority  of 
s  of  contracts, 
By  are  ordina- 
iency  of  remc- 
red  the  oliliga- 
r  the  result  in 
ucessary  wear- 
ols  of  mechan- 
recognlzed  as 


262 


(OSMITl  IIUNAI,    (  At»KS    SIMI'MKIKU. 


EMISKNT  hoMMN. 


WEST    UlVKIl    HUIIXiK   COMPANY  v.  DIX. 

[i;  How.  :)0;.J 

The  W.'Ht  Uiver  nri.ifio  ('(.inpiiny  hud  a  (Imrtor  from 
th(>  Stiito  of  Vormoi.t  -nmlin;,'  thcMu  the  oxoliisivo  imvi- 
lo<r(.  of  em-tinir  an.l  iimiiitaiiiin-,'  ii  hficlj^e  over  a  nvor. 
.rsubso.i.u'ut  art  of  th«  Lc-ishit  iiro  pn.vi.U-l  for  the 
co.uhMnninu  ..f  property  for  hi-hwuys,  and  under  th,s 
statute,  tho  authorities  took  the  company's  bridge 
(after  assessing  eouipensatiou  for  it)  and  turned  it 
into  u  free  pnl)lic  highway. 

The  e  .n.panv  ar-ued  that  this  proceeding  impaired 
the  obn.ration'..f  a  rontraet,  and  asked  to  have  the 
thin.'  set  aside.  But  while  the  .-ourt  agreed  with 
j'them  that  tlie  charter  was  a  contract,  it  hehl  that  the 
charter  w;.s  subje.t  to  the  right  of  eminent  domani  ni 
the  State,  and'tinit  the  company  had  no  h>gal  com- 
plaint. 

What  is  known  as  the  power  of  eminent  domain  is  the  authority 
which  the  State  has  to  control  and  appropriate  private  property 
for  the  public  beneflt,  whenever  the  pnblic  .afety.  convenience  or 
welfare  L.y  rec.uirc.  It  Ih  a  pnblic  necessity  that  there  should  be 
a  g'reet  made  throuRh  my  lot.  I  cannot  refuse  to  part  with  the 
portion  of  my  land  rc.nired  for  that  purpose.  The  Constitutions 
I,f  the  United  States,  and  of  the  States,  provide,  however  that 
private  property  shall  not  be  taken  without  "just  compensation, 
and,  therefore,  I  am  entitled  to  be  pal.l  the  value  of  my  property, 
and  the  State  cannot  take  it  away  without  payin-;  mc. 


(•ONSTITl'TIONAI,    ("ASKS    sIMll-H  IKl). 


•.;<■»;'. 


I>IX. 


ivtor  from 
sivo  privi- 
:>r  a  river, 
i'd  for  tl»e 
luder  this 
''9  bridge 
turned   it 

i  inipiiired 
I  have  the 
:reed  with 
d  that  tlie 
domain  in 
h><;al  com- 


the  authority 
vate  property 
anvenience  or 
ere  shoulil  be 
part  with  the 
Constitutions 
liowever,  tlmt 
•mpensatlon," 
my  property, 


went  River  nrid.o  Compa-y  r.  »'V^'"  ""' "         ,  v  ie  u  Ju 
1„K  ,l,.t  a  franrh...-.  llko  any  other  kin.i  of  l"-'P':7>;     "^  ^   , 
awBV  in  part  or  in  whole  by  .n.ans  of  thi.  |.ow.r  In  the  Stat.  . 


■■ 


CONSTITtlTIONAI,    CASES    HIMPMPIRD. 


CHAPTER  Y!.  — THE  POLICE  POWER. 


PROTECTION  OF  PUBLIC  HEALTH. 


THE     SI.AUGHTEK-HOUSE    CASES. 

[n;  Wall,  at;.] 

The  Lej^^islalure  of  Louisiana  in  18(5D  granted  to  a 
corponiUon  tlio  exclusive  right  for  twenty-five  years 
to  maintain  shiughter-houscs  and  cattle-yards  within 
a  certain  district,  and  prohibited  all  other  persons 
from  huilding  or  keeping  such  houses  or  yards  within 
these  limits.  It  is  also  required  that  all  cattle  or  other 
animals  intended  for  sale  or  slaughter  within  the 
district  should  be  brought  to  the  yards  and  houses  of 
the  corporation,  and  authorized  the  corporation  to 
charge  certain  fees  for  the  use  of  its  property  in  this 

way 

The  butchers  of  New  Orleans,  which  city  was  within 
the  district,  objected  to  this  grant;  they  said  it  was 
a  monopoly,  and  for  this  reason  illegal.  But  the  court 
constrned  it  as  a  "  poli'^e  "  regulation,  designed  for  the 
health  and  comfort  of  the  people,  and  the  butchers  got 
no  relief. 

The  police  power  of  a  State  has  been  defined  as  "  the  authority 
to  establish  for  the  intercoiirse  of  the  several  members  of  the  body 
politic  with  e;ich  other,  those  rules  of  good  conduct  and  good 
neighborhood  which  are  calculated  to  prevent  a  conflict  of  rights 
and  to  iQsure  to  each  the  uninterrupted  enjoyment  of  his  own,  so 


JFIRD. 


CONSIITITIONAL    (  ASl'S    SIMIM,  riKD. 


2r.r) 


E  POWER. 


lEALTIi. 
CASES. 

^(51)  granted  to  a 
wenty-five  years 
ttle-yards  within 
11  other  persons 
or  yards  within 
ill  cattle  or  other 
htcr  within  the 
ds  and  houses  of 
le  corporation  to 
1  property  in  this 

ih  city  was  within 
they  said  it  was 
il.  But  the  court 
I,  designed  for  the 
I  the  butchers  got 


far  as  \*  reasoimbly  cousistent  with  a  corresponUins  enjovment  by 
other.."  Coolev  Prin.  Const.  L.  227.  "It  extends  to  the  pro- 
tection of  the  liv"e.s,  llm..s,  health,  comfort  an.i  quiet  of  aU  ,H>rsous 
an.l  the  protection  of  all  property  within  the  State  anU 

persons  an.l  properly  are  subjected  to  all  klndn  of  restraints  and 
burdens  in  order  to  secure  the  general  comfort,  health  and  prosper- 
ity of  the  State."    Thorpe  r.  Rutland,  etc.,  K.  Co.,  2,  M.  1411. 

Laws  prohibiting  work  and  labor  or  the  pursuit  of  occupations  on 
Sunday  are  another  instance  of  police  regulations.  Although  they 
may  be  an  encroachment  on  the  relipious  liberty  of  a  citizen,  or  a  res- 
traint upon  trad;  and  commerce,  they  are  aufflcient!yjustifted,andare 
avalld  exercise  of  the  police  power  of  the  State.  So  are  laws  gov- 
erning the  use  of  highways,  such  as  regulating  the  speed  of  travel 
thereon,  their  improvement,  etc.  A  like  subject  is  the  regulation  of 
navigable  waters. 


ed  as  "the  authority 
members  of  the  body 
id  conduct  and  good 
nt  a  conflict  of  rights 
meut  of  his  own,  so 


266 


CONSTITl'TIONAL   CASES   .SlMl'LllIEU. 


POLICE   POWER  RESIDES  IN  THE  STATES. 
POWERS 'of  congress. 


UNITED  STATES  v.  DEWITT. 
[It  Wall.  41.] 

The  Internal  Revenue  Act,  passed  by  Congress  in 

18t57,  declared  that  no  person  should,  under  penalty 
of  tine  and  imprisonment,  mi.K  naptha  and  illumin- 
ating oil  for  the  purpose  of  selling  them,  or  offer  this 
compound  for  sale.  It  also  prohibited  anyone  from 
offering  for  sale  oil  made  of  petroleum  for  illuminating 
purposes,  inflammable  at  less  temperature  than  100" 
Fahrenheit.  Dewilt,  who  lived  in  Detroit,  Michigan, 
did  just  what  the  statute  said  that  people  should  not 
do,  and  being  lined  for  his  temerity,  appealed  to  the 
Supreme  Court,  urging  that  Congress  had  no  power 
to  pass  such  a  law. 

The  court  said  he  was  right.  "As  a  police  regula- 
tion," they  said,  "  relating  exclusively  to  the  internal 
trade  of  the  States,  it  can  only  have  effect  where  the 
le<»islative  authority  of  Couiiress,  excludes,  territorily, 
all  State  legislation,  as  for  example,  in  the  District 
of  Columbia.'' 

The  Constitution  does  not  take  away  the  police  power  from  the 
SUte»;  It  is  left  with  thera.  The  National  government  cannot 
assume  any  supervision  of  the  police  regulations  of  the  States. 
But  the  Supreme  Court  of  the  United  States  is  frequently  called  on 
to  examine  State  sUtutes  when  they  are  passed  ostensibly  under 


CONSTITUTIONAL   CASKS    SlMI'Lll'IKO. 


2ti7 


'ATES. 


ngress  m 
r  penalty 
I  illiiinin> 
offer  this 
Olio  from 
Liminutiiig 
than  100" 
Mlchigiin, 
houkl  not 
.led  to  the 
no  power 

ice  regula- 
le  internal 
where  the 
territorily, 
le  District 


,be  police  power,  and  to  consider  whether  they  do  not  nterfere 
with  .ome  of  the  powern  given  e.cluBlvel,  to  the  NaUonal  .ovorn- 
Lnt.  see  Railroad  Co.  ..  Husen,  and  Chy  Lung  ..  Freeman,  post, 
pp.  i.'r>8,  ao'.*. 


wer  from  the 
nent  cannot 
the  States. 
Btly  called  on 
jnsibly  under 


268 


CONSriTirriONAI-    casks    «1M1'L1K1K1). 


MUHTNOT  CONFLICT  WITH  NATIONAL  RIGHTS. 


RAILROAD   CO.  V.  HUSEN. 

[5  Otto,  465.] 

Tn  violation  of  ii  stiitute  of  Missouri  which  prohih- 
itcd  iinv  Olio  JVoin  l)riii,irin<;  any  Toxas,  Moxiran  or 
Indian  cattle  into  tho  Stato  between  March  1st  nnd 
N()veinl)er  1st  in  each  year,  the  Hannihal  and  St.  Jo- 
seph Railroad  earried  some  of  these  eattle  into  Mis- 
souri. Now,  these  cattle  had  a  disease  called  the 
Spanish  fever,  which  they  communicated  to  Mr. 
Husen's  cattle,  to  his  great  loss,  and  Mr.  Husen 
l)rouglit  an  action  against  the  railroad  company  to  re- 
cover his  damages. 

The  railroad  company  argued  that  the  statute  was 
void,  as  being  a  "  regulation  of  commerce,"  and  thus, 
as  we  have  seen,'  beyond  the  power  of  a  State  to  pass. 
Mr.  Husen's  couuscl  on  the  other  hand  insisted  that  it 
was  a  police  regulation.  Tho  railroad  company  won. 
'''We  admit i"  said  the  Supreme  Court,  "that  tho 
deposit  in  Congress  of  the  power  to  regulate  foreign 
commerce  and  commerce  among  the  States  was  not  a 
surrender  of  that  which  may  properly  bo  denominated 
police  power.  What  that  power  is  it  is  difficult  to  de- 
tine  with  sharp  precision.  It  is  generally  said  to  ex- 
tend   to    making   regulations   promotive    of   domestic 

'  Anlr,  J).  'JIS. 


CONsTrnrioNM.  ca^i^s  simi'I.ikikd. 


■_>(;'.• 


RIGHTS. 


d\  prohiH- 
loxu-an  or 
•h   Irtt  und 
ml  St.  iTo- 
e  into  iVIia- 
ciilltMl   the 
(1    to    Mr. 
^Ir.    Husen 
paiiy  to  re- 
statute  was 
'  and  thus, 
lite  to  pass, 
isted  that  it 
ipany  won. 
,  "  that  the 
late  foreign 
3  was  not  a 
lenoniinated 
Scult  to  de- 
r  said  to  ex- 
it' domestic 


order,  morals,  h.al.h  and  .safety.  J^^ 

ul.o  he  ad.uittod  that  the  police  posvers  of  a  ^^-itc      « 
tifv  the  adoption  of  precautionary   n.easures  agan;  t 
^,Ll  evils.     Under  itaState  may  legislatetopreveut 

the  spread  of  crime,  or  pauperism,  <.r  disturbance  of 

the  peace.     It    may  exclude  from   its  lunUs  eonuct. 

paupers,  idiots,  and  lunatics,  and  pcrs„ns  l.kely  to  1    - 

eon  e  a  public  eharge.  as  well   as    persons  atUu-ted  by 

conta.nous  or  infectious  diseases.      Tl.e  same  prnu-.ple, 

1;  also  be  c.uu.eded,  would   Justify  the   exclusu.u 

of  property  dangerous  to  the  property  ot  e.t.zeus  o 

th^StL,Lr  example,  animals  having  eoutag.ov.0 

infectio.s  diseases.  All  these  exert.ons  ot  pow  i  .  c 
i„  i,,,„,aiate  connection  with  the  protection  of  e  - 
sons  and  property  against  noxious  acts  <.f  other  pc- 
sons,  or  such  a  use  of  property  as  .s  mjunou.^  to  the 

pn.pertv  of  others.     They  are  self-detens.ve 

But,".H,twithstanding  this,  the  court  saul  that  the 
police  power  of  the  State  cannot  be  exercised  over  a 
Lbiect  conf^de<l  exclusively  to  Congress  l>y  tl-  1-  " 
era  .n.vernn>ent,  bryond  the  nbsolnW  nec.s.s.  .y  Jo. 
.cerrise.  Tested  by  this  rule  the  Missouri  statu  e  was 
,  p|,i,  iutrnsion  upon  the  exclusive  donnun   of  Con- 


gress. 


CHY  I.UNC>  V.  FREEaiAN. 

['.'  otio,  i;Tr>.] 

A  California  statute  re.piired  the  master  of  every 
veil  :niving  in  the  State  tVom  a  foreign  poHto^- 
a  bon.l  for  every  passenger  wlm  was  -^"-'^-l  ^  ; 
deaf.  dumb.  blin-'.  intirn..  a  pubhe  charge,  or  hkely  to 


sy^ 


270 


coxsTnrnoNM-  cams  8imi'MFii'.i>. 


lKMM)ino   one   soon,  or  ii  l«!\vd  or   liohaiu-hed  woman. 
Chy  Lung  WHS  aChineso  woman,  and  a  passenger  on 
thJ  stoaniship  Japan,   from    Chiini.     When   the  ship 
landed  at  San  Franeiaoo  tlie  Calilornia  offifials  decided 
that  Chy  Lmig  was  a  lewd  wonum,  and  refused  t«>  let 
her  land  untilthe  captain  had  executed  a  bond  under 
the  st;ituto,  or  i)aid  a  sum  of  money  in  commutation 
thereof  which  Iho  statute  permitted.     The  captain  re- 
fused  to  do  either.      Chy  Lung  would  have  had  to 
go    l)ack    to    China    had  a  Unite.l    States  judge  not 
issued  a  hahea>^  corpuf<.     The  case  went  to   the    Su- 
preme Court  of  tlie  United  States,  where  the  statute 
was   declared   void,  and   Chy  Lung   was   allowed   to 
remain  in  the  *•  land  of  the  free." 

The  ground  of  the  decision  was,  that  even  if  it  is 
within  the  police  power  of  a  State,  to  pass  statutes-  in 
regard  to  the  crnninal,  the  pauper  and  the  diseased 
emigrant  landing  within  its  borders,  this  power  is 
limited  to  such  laws  as  are  absolutely  necessary  for 
that  purpose.  The  statute  of  California  extended  lar 
bevond  the  necessity,  and  invaded  the  right  of  Con- 
gress to  regulate  commerce  with  foreign  countries. 

Tlje  question  in  these  cases  was  whether  what  was  called  by  the 
States  a  police  regulation,  and  therefore  within  their  power  to  pass, 
was  really  of  this  character,  or  whether  it  was  a  "  regulation  of 
commerce  "  in  illsguise.  And  the  Supreme  Court  of  the  United 
States  took  the  latter  view  of  it,  mainly  for  the  reason  that  it  was 
an  exercise  of  that  power  beyond  what  was  necessary,  and  Inter- 
fered with  the  National  authority  over  interstate  and  foreign  com- 
'i    inerce  more  tlian  there  was  any  need  for. 

*  ■  As  to  the  Missouri  statute  the  court  said:  "  It  is  not  a  quarai- 
tine  law,  it  is  not  an  inspection  law.  It  says  to  all  nati;val  person- 
aud  to  all  transportation  companies :  '  You  shall  not  brisg  into  t-  - 
State  any  Texas  cattle,  or  any  Mexican  cattle,  or  Indian  cattle,  :>«- 
tween  March  1  and  November  1  in  any  year,  no  matter  whether  tbt 
are  free  from  disease  or  not;  no  matter  whether  they  may  do  an  in- 


wouiun, 
enger  on 
the  sliip 
s  dcciUcd 
ed  to  lot 
intl  under 
unntation 
iptii'm  re- 
0  had  to 
jutljio  not 

tlio  Su- 
le  statute 
llowed   to 


C.NMiri  TIONM-    <ASK.S    SIMI'MKlll. . 

jurytothelnlmbitunts  of  the  State  or  not;  aud  If  y-' ^''^J^'^ 
en  in,  evn  f.r  .l.o  purpoM.  ..f  carrying  the.n  thron^U   l.e  Ma  e 
wU^ut'unloaain.  t.u.n.  you  shall  b.  ^^^^^^^^'^^^^^Z^ 
bilities.'    Such  a  statute,  we  do  not  doubt,  .t  m  beyond  the  power 

of  a  State  to  enact." 


en  if  it  is 
tiitutee  in 
a  diseased 
power  is 
;essary  for 
tended  far 
it  of  Con- 
intries. 

called  by  the 
ower  to  pass, 
regulation  of 
{  the  United 
n  that  it  was 
ry,  and  inter- 
foreign  coin- 
not  a  quarai- 
iti;val  person- 
brisg  into  V" . 
lau  cattle,  '.'«- 
whether  tbt 
may  do  an  In- 


272 


coxsTrnrioNAi,  casks  simi'I.ikiki). 


ADMISSIOX  TO  THE  BAB. 


BBADWELI^  V.  STATE. 

[1(1  Wall,  liio.l 

There  Mi-o  not  niuny  fViiiiilc  lawyers  in  the  United 

States,  iMit    tlu>  ffw   inaiiiijic  to  make  a  jiood  ileal  of 

Moisc.     It  is,  thcn'rorc,  not  siirprisiii^i;  to  tiiul  one  of 

tlu-m  l)riiiirin«:  a  sovereign  State  to  Look  in  the  Supreme 

Court  of  Illinois,  for  refusinL'lo  admit  her  topractieein 

its  courts.    She  relied  upon  the  Fourteenth  Amendment 

to  the  Constitution,  that  no  State  shall   "  abridge  the 

privileires   or   immunities    of  citizens  of  the   United 

States/'      But  it  was  no   use.     The  right  to   practice 

law  in  the  State  courts  was  not  such  a  privilege,  said 

the  court. 

The  pla.ntiff  .n.ule  another  point  In  this  case.  She  qaoted 
section  ■•  of  articU-  IV.  of  the  Constitution,  which  provides  that  the 
citizens  of  each  .Stale  shall  be  .•ntitle.l  to  all  privileges  and  immuni- 
ties of  ci.Ucns  in  the  several  States,"  and  said  that  being  born  m 
Vermont,  and  bein«  refused  admission  to  the  bar  in  IlUnol8,  she 
WIS  within  the  protection  of  this  section.  Hut  it  was  discovered 
that  she  had  lived  a  !,'.)od  many  years  and  was  then  living  in  Chicago, 
and  was,  therefore,  a  citizen  of  the  same  State  whose  laws  she  was 
complaining  about.    So  this  section  did  not  help  her  either 

subsequently  to  this  case,  the  legislators  of  I'';-;;- '"f/^  ;"' 
passed  a  law  permitting  women  to  be  admitted  to  the  bar.    The 


le  United 
I  de:il  of 
ul  ono  of 
8uproino 
iracticeiii 
iiendnu'iit 
)rid<ie  tlio 
e  United 
I  i»r;ictioo 
lege,  said 


CONSTITUTIONAL   CASKS   SIMPMFIKD. 


273 


plaintiff  was  then  n.iule  happy,  niul,  in  Ihu  words  of  Ler  counsel  la 
u„w  able  to  manaue  tl.oso  "  many  causes,  la  which  the  silver  voice 
of  woman  would  a.compllsu  more  than  the  severity  and  sleruness 
of  man  could  achieve," 


IS 


She  quoted 
esthat  "the 
and  Immuni- 
jing  born  in 
Illinois,  she 
9  discovered 
i  in  Chicago, 
laws  she  was 
ither. 

3  melted  and 
he  bar.    The 


271 


CONSTITUTIONAL    CASKS    SIMl'LIl'IKD. 


CORPORATIONS, 


PAUTj  v.  VIRdlNlA. 

[8  Wall.  I(i8.] 
Mr.   Samuel   Paul,  whom  wo  remember  ^  as  arguing 
before    tlio  Supreme  Court  of    the  United  States  that 
the  Virginia  statute,  recjuiring  a  license  fi  >n\  ever^  for- 
ei'Mi   insurance  comi)anv  doing  business  in  Virginia, 
was  a  •'  regulation  of  commerce,"  and  theretoro  void, 
and  whom  wo  also  renjeml)er  received  the  answer  that 
issuiii'j  a  policy  of  insurance  was  not  "commerce"  at 
.,ll,_Mr.  Samuel  Paul  made  before  that  trilnnial  an- 
other argument    for  the   purpose  of  having  tlie  statute 
deelared    nnconstitutiomd.      He     sul)niitted    that    the 
statute  conllicted  with  that  clause  of  tlie  United  Slates 
Constitution  which  dechires  that  "  the  citizens  of  each 
State  shall  be  entitled  to  all  the  privileges  and  immuni- 
ties of  citizens  in  the  several  States"  because  here  was 
a  New  York  insurance  company  which  c^^dd  not  do 
business  in  Virginia  like  a  Virginia  company,  but  had 
to  get  a  license,  de[)osit  bonds,  etc. 

But  the  court  decided  against  Mr.  Paul  on  two 
.^rounds.  It  ruled,  first,  that  corporations  are  not  "  citi- 
zens" within  the  clause  ;  second,  that  the  "  privileges 
and  immunities"  mentioned  above,  are  those  privileges 
and  immunities  which  are  common  to  the  citizens  in  the 

»  Ante,  p.  L'19. 


CONSTITirnoXAL    CASKS    SIMI'I.llMKI). 


27r) 


hitter  Stiitos,  uikKt  tlicir  coiiHtitiition  imd  laws,  l»y  vir- 
tue of  tlieir  beiiis;  c  itizciis.  Spocial  [)rivilt'<xt'^  I'lijoycd 
by  citizens  in  tlieir  own  States  are  not  secured  by  this 
provision  in  other  Slates. 


INTOXICA  TING  L 1 Q L'OIiS. 


as  arguing 
States  tliat 
ever}  lor- 
i  Virginia, 
et'oro  void, 
nswer  that 
inierec"  at 
■ihnnal  an- 
llie  statute 
that  the 
ited  States 
■ns  of  each 
id  iminuni- 
io  liero  was 
'dd  not  do 
IV,  biit  had 


BARTEMEYER  v.   IOWA. 

[18  Wall.  i;il.] 

Barteinevcr  was  fined  in  Iowa  for  selling  a  glass  of 
whiskey  in  violation  of  a  law  of  the  State  ])roliil>iting 
the  sale  of  intoxicating  li(|nors.  liartenievcr  appealed 
to  the  Supreme  Court,  alh'ging  that  he  was  a  citizen 
of  the  United  States,  and  that  the  Iowa  law  abridged 
hia  "  privileges  and  ininiuiiit  ies."  Hut  tiie  court  held 
that  the  law  was  valid.  Hegulating  and  totally  pro- 
hil»iting  the  li(|Uor  traffic  fell  within  the  police  regula- 
tion of  a  State;  and  the  right  to  sell  intoxicating 
liquors  was  not  one  of  the  "  privileges  or  immunities," 
which  by  the  Fourteenth  Amendment  the  States  are 
fobidden  to  abridjie. 


lul  on  two 
snot  "  citi- 
"  privileges 
le  privileges 
bizens  in  the 


BEER  C03IPANY  v.  MASSACHUSETTS. 

[7  Otto,  I'o.] 

The  Boston  Beer  Company  was  incorporated  in  1828, 
for  the  purpose  of  mani'^'actuiing  malt  liquors  in  all 
their  varieties,  a  statute  being  then  in  force  in  the 
State  giving  the   Legislature  power  to  alter  or  repeal 


27tl 


(  ((N.-.TlTiri'>NM.   <  ASKS    MMI'1,11 


IK!». 


churtiM-..     VmU'VM  pn.l.il.il..ry  liM<".i   law,  im«sfHl  in 
lMii»,  cnlniii  mult    liM>iors   lu'lciiiriii,'  to  the  coiupauy 
wiMv  srizcd  and  foit.-il.'.l.     The  lirrr  Coini.imy  ohiuncd 
muU-rits  .•hait.r  a  ii::ht   l.y  .•(.ulni.-l  t.>  luamifarturo 
aiul  s.ll  liquor  loivvcr  without  ititoifonMice.     Uiit  the 
n.uit  (K'ci.led  otherwise.     "  The  police  power,"   saul 
Mr.  .I.i^tiee    liUADI.KV.    -exteiulsto  the  protection  ot 
the  lives,  health  ami  properly  of  tho  citizens,  unU  to 
the  preservation  of  ^'oo<l  ..r.ler  ami  tho  ixihlic  uiorala. 
Tho  Lej;i>lature<Mniiot,  hv  any  contract,  .live.st  itselt 
of  the  imwer  t(.  [.roviile  for  these  sul.jeets." 

It  s,e,„.  lo  b,-  piHtv  Will  M.tiU'.ltl.at  tl.c«  rl■^'^lalion  or  absolnte 
prohil.iiionof  ilu.  ,nauu(ac...r.-,u,.lsul....f  i.U..xicatU.«  liquors  Is 
ully  within  ll..-|M.ltce  power  of  ll.o  States.     U  scorns,  I">wi'n -r. 
that  tluT..  isa  Ifnitatlon,  viz.:  wluro  tl..  law  interferes  w  ih  son.e 
vc-u-.i  rl^:hts  of  propiTty.    This,  huwc-vt-r,  has  not  yi't  been  ex- 
nresHlv    passe.l  upon  by   the    hi;:hesl    jiuUeial  authority,  thot.^'h 
there  are   dUO,   to  that  effect  i«   l)o.h  of  the  above  cases.        No 
one,"   saiil  one  of  the  ja.l«es  in  Hartetneyer  v.  Iowa,   "has  ever 
.loubie.l  that  a  I.euMslature  n.ay  prohibit  the   vending  of  articles 
dc-enuHl   ir,j„rious  to  the  ..afety  of  society   provided    t  does  no 
^  erfere  with  ve.ted  rights  of  property.    When  such  rights  stand 
1„  „u.  way  of  the  public  «ood  they  can  be  removed  by  award   .« 
compensation  to  the  owner.    When  they  are  not  in  'UU'^^";"' j"); 
claim  ot  a  n^ht  to  sell  a  prohibited  article  can  never  be  deemed 
one  of  the  privileges  and  Ininiunities  of  a  citi'.en." 

Another  constitutional  .p.estion  of  an  important  character  was 
rai  e.l  in  the  Slaughter  llou^e  Case..     It  wa>  ar.ued  that  the  ,ran 
o  the  Slaughter  House  Conu-any  violated  the  Thirteenth  Amend.nen 
otheOonstitutlonbycreatinuan '.involuntary  serv.tude'  and   im 

It  also  violated  the  Fourteenth  Amendment,  which  provides:  No 
St.ue  shall  make  or  enforce  any  law  which  .hall  abridge  the  pr.v,- 
';;  or  inununities  of  citizens  of  tl>e  United  States,  nor  sluj  any 
State  deprive  ...mv  person  of  life,  liberty  or  property  without  due 
p  ocess  if  law,  ■'  ,leny  to  any  person  within  it.  ]ur  sdic  ion  the 
r,ual  protectu,;.  of  the  laws."  Hut  the  court  held  that  '•'«  I'^;,^-"^ 
Amendment  had  nothing'  to  do  with  the  case,  because  the  "Invol- 
untary  servitude"  prohibited  by  it  referred  only  to  some  speces 
;rp  rsonal  slavery     such  as  African  slavery,  which  it  had  been 


psiHscil  in 

coiupany 

ly  cliiiincd 

lllUt'lU'tUI'O 

Hilt  the 
!vv,"  siiid 
it  cot  ion  of 
lis,  and  to 
10  inonilH. 
ivost  itself 


II  or  absolute 
iif?  liquors  is 
lis,  however, 
•e.-i  Willi  some 
yet  been  ex- 
orlty,  iliouulk 

cases.  "  No 
a,  "  has  ever 
lit;  o(  articles 
[\  It  dues  not 
I  ri!;lits  stand 
I  by  awanliiiK 

(lueslion,  llie 
er  be  deemed 


CDNSTITITInN  \I,    CASKS    SIMI't.HI  KD.  U  M 

passed  primarily  lo  imMiil  for  all  time,  As  to  the  t)llier  objeetlon 
the  court  111  1(1  tliiii  I  was  absurd  In  say  that  the  ^rniit  In  (luestlon, 
deprlv.Mlaiiyboilv  of  th<lr  life,  liberty,  or  i.roperty ;  that  the  "privi- 
leges or  iiiimiinllles  "  of  eitlzeiis  of  the  riilleil  States  do  not 
Include  the  ri^lit  to  hold  property,  enuaae  in  business,  elr.,  and 
tliat  tlie  Inhibition  a;.'aiiisl  the  States  "  denying  to  any  person  the 
oijual  protection  of  tlie  law"  was  aimed  (as  the  history  of  the 
time  shows)  exclusively  at  State  statutes  whieli  were  one-sided 
and  oppressive  In  their  effeet  upon  the  enianeipated  blaeks.  Four 
judges,  however,  ilUl  not  au'ree  with  this  latter  conclusion. 

In  later  ea>es,  li  has  been  held  that  the  ri«lit  to  practice  law  in 
Stale  courts  (Uradweli  >•.  Ililiiois, ';»/-■  p.  '.'Vl')  ;  the  riuhltoseli  In- 
toxicating Ihiuors  (Harleineyerr.  Iowa,  Heer  Co.  >•.  Massiichusettft, 
p.  L'7,"),  are  iiui  "privtlejies  and  iminunltU'H  of  citizens  of  the 
ITnlted  States"  within  the  Koiirteenth  .Vinendinent. 


character  was 
that  the  {jrant 
ith  Amendment 
ude,"  and  that 
irovidcs:  "No 
ridge  the  privi- 
,  nor  shall  any 
,y  without  due 
urisdiction  the 
t  the  Thirteenth 
ise  the  "Invol- 
o  some  species 
ch  it  had  been 


278 


coNsrrruTioNAL  cases  simplified. 


REG  UL  ATI  ox  OF  JtAlLROAUS. 


UAllUOAI)  t(»IPAXY  V.  I  ULLEK. 

_  [17  Wall,  .-.r.o.] 

A  siatt.to  ..f  I..wa  i,rovi.l.-l  a.  follows,  viz.  :  - 

1  Tlra  o;u-h  railnm.l  c-oiupaiiy  in  the  State  should 
anniially,  i..  S-pK-'ulnM-,  lix  its  rates  loi"  the  transpor- 
tation ot  passeiiizers  ami  iVeights.  _ 

2  That  it  shonld,  on  the  first  day  ol  the  next 
,nonth.posta,uinte.l.-o,>yofi.sratesatitsst.aums 

and  depots,  and  keep  it  there  dnring  the   whole  >cai 

A  failure  to  eo.npl  with  this  aet,  or  the  eharg.n.iZ  of 
a  hi-her  rate  tl>an  was  posted,  sulyeeted  the  ..tlending 
company  to  the  payment  of  a  penalty. 

tIu.  Chieairo  an<l   Northwestern   Ruiln.ad  Company 
poste<l  up  tlK-ir  rates  as  required,  hnl  one  day  chargcnl 
a  nmu  named  iMdler  more  than  their  sehedule  tanrt, 
for  which  thev  were  fined  in  an  Iowa  eourt. 

Th,  railroad  eon.pany  appealed  to  the  feupre.ne 
Court  of  the  United  States,  and  they  tried  hard  to 
convine..  that  trihunal  that  the  Iowa  statute  (the  rad, 
road  rnnninuMlnough  several  States)  "  was  a  regula- 
tion  of  .onuneree,  and  invalid."  But  the  court 
considered  it  a  regulath.u  of  poliee,  and  valid. 

..Tne  statute,"  said  Mr.   Justiee   SwAVNE,  "only 

required   that  the  rates   shall  be  fixed,  made  public, 

and  honestlv  adhered  to.     In  this  there  is  notbuig  uu- 

'"  reasonable  or  onerous.     The  publie  welfare   is   pro- 


FIEU. 


CONSTITUTIONAL    CASKS    SlMrMKIKD. 


■>7\) 


MUS. 


ULLEK. 


ws,  VIZ.  :  — 
tlio  State  should 
:)!■  tho  Inmsiior- 

ly  of  the  next 
s  at  its  stations 
the  whole,  year. 
r  the  chiUijinu;  of 
ted  the  otletiding 


nioted  witiiout  wi-oii.i:  of  injm'y  to  tho  ooiupaiiy.  1  he 
statute  was,  doubtless,  deemed  to  he  ealied  for  hy  the 
interests  of  tlie  coniinunity  to  he  alleeted  l)y  it,  and  it 
rests  uponasoliil  foundation  of  reason  and  justiee. 
It  is  not,  in  th.-  .M-nse  of  the  Constitution,  a  re-rnlation 
,.f  eoniineive.  It  is  a  poliee  re.irulation,  and,  as  sueh, 
forms  a  portion  of  the  immense  mass  of  le-rislation 
whieh  end)raees  everytliin;:  within  the  territory  of  a 
Stat(  not  surrendered  to  the  jreneral  oovernment ,  all 
wliiel'  ean  he  most  advantageously  exercised  hy  the 
States  themselves." 

It  is  unOLT  tlio  police  i.owor  of  iW  Stut.'s  tliat  tlio  railnmds  of 
tlu"  couiitrv  aro  iv-u!  xU'<t.  Thus,  un.ler  this  pow.T,  ruiimails  may 
bo  comiK-lle.l  to  fence  theirtraciss ;  to  check  tlielr  speed  at  exposed 
places;  to  carry  impartially  for  all  persons;  to  permit  other  roads 
to  cross  tlieir  track,  and  to  sliare  the  expense  of  the  crossiniz;  to 
rin"  a  l>ell  or  sound  a  whistle  at  cro.sshms,  or  to  station  a  lla-man 
at  Mich  places;  to  exhibit  their  rates  of  fare  (us  in  the  principal 
case),  and  the  like. 


lilroad  Company 
one  day  charged 

V  schedule  tarili', 

,  court, 
to    the   Supretne 

i(>v  tried  hard  to 
statute  (the  raiU 

5)  "  was  a  regula- 
Bnt  the    court 

and  valid. 

I  SwAVNK,  "  only 

xcd,  niado  public, 

lere  is  nothing  uu- 

c  welfare   is   pro- 


280 


CONSTITUTIONAL    CASKS    SIMl'LIFIKD, 


REGULATION  OF  CHARGES. 


PEIK  V.  CHICAGO  AXD  NORTHWESTEKIf 
RAILWAY  COMPANY. 

[t  Otto,  KU.] 

Bv  its  charter,  tlie  Cliicago  and  Northwestern   Rail- 
road   Company  was   authorized  to  "demand  and  re- 
ceive sueh  sums  of  money  for  tho   transportation  of 
persons  and  property,  and  for  storage  of  property  as 
it  shall  deem  reas()nal)le."     This  charter  was  granted 
hv  the  State  of  Wisconsin,  whose  Constitution  at  that 
time  provided  that  acts  for  the  creation  of  corporations 
might  he  at  any  time  altered  or  repealed  hy  tho  Legis- 
lature.     In  1ST4  tlio  (grangers  took  a  hand  in  legisla- 
tion, and  passr'd  laws  regulating  tho  chaiges  of  railroad 
companies    in    the    State.      The    Chicago    and    North 
Western  Railroad  (\)mi)any  tried  to  have  these  statutes 
declared     void     as    to   them,    but    without    success. 
"  Where  prop«Mty  has  heen  clothed  with  a  public  in- 
terest." said  the  Chief  Justice,  "  the  Legislature  may 
tix  a  limit  to  tiiat  wliich  shall  in  law  be  reasonable   for 
it*   use.     This  limit  binds  tho  courts  as  well  as  the 
l)eoi)le.     If  it  has  been  improperly  tixed,  tho  Legisla- 
ture, not   the   courts,   must  be   appealed   to    for   the 
chauiie." 


itott 


CONsriTlTlONAL    CASKS    SlMrMFIKD. 


2.S1 


PEKN 


•rn   Riiil- 
1  and  rc- 
itution  of 
■operty  as 
IS  frrantcd 
)H  at  that 
fporations 
tho  Legis- 
\n  logisla- 
)f  railroad 
nd    North 
so  statutes 
:,    success, 
public  in- 
laturc  may 
onaltlc  for 
.rell  as  the 
10  Legishi- 
U)    for   the 


CHICAGO,  BURLINGTON   AND    Ql  INCY    KAIL- 
WAV   COMPANY  V.  IOWA. 

[4  (Hlo,  155.] 

I„  187(5  the  (irauiror  nioviMucnt  in  sovfird  of  thf 
Stales  cul.ninaled  in  the  passage  of  hnvs  reguh.tn.g 
,lu.  rates  whicli  raih-oad  companies  should  charge  lor 
Ibe  transiu)rtation  of  persons  and  property.  Among 
others  the  Iowa  Legislature  passed  a  law  hxmg  the 
.naximnm  rate  of  charges  for  the  transportation  ot 
tVei-dil  and  passengers  in  the  dilVerent  railr<.ads  m  the 
Sfvre  The  Chi.'ago,  Burlington  and  (iumcy  Radroa.l, 
.,s'  lessee  of  several  other  roi.ds  in  tiui  Slate,  was 
;.speeiallv  displeased  with  the  law,  and  trie.l  to  enjo.n 
the  State  ..tticers  from  enforcing  it,  for  the  lolh.wn.g 

''"  First  the  railroad  said  that  the  Legislature  had  no 
ri.d.t  to  say  what  it  shouhl  .harge  for  its  services. 
But  the  court  answered:  -  Bailroad  companies  are 
,..„ricrs  for  hire.  They  are  iucorporated  as  such,  and 
./,vcn  extraordinarv  powers  in  order  that  they  may  the 
iu.tter  serve  the  puhlic  in  that  capacity.  1  hey  are, 
therefore,  enoa._nMl  in  a  i.ul.lic  emplovmenl,  atlecl.ng 
the  puhlie  imcivst.and  suhject  f.  legislative  contro 
as  to  their  rates  of  fare  and  freight  unless  protc'cted 

l)v  their  charters."  ■  ,     i    ,  ■♦• 

'  Beaten  from  this  position  the  railroad  said  timt  it 
the  State  h.d  the  power  it  had  m-ver  Used  it  helore, 
,„a  iVom  this  tried  to  imply  that  the  St.te  had  rehn- 
quished  it.  But  the  court  answered  again:  -  t  is  a 
,;„tter  of  no  importance  that  the  power  of  regulation 
tu,w  under  consideration  was  not  exercised  for  more 


"^ 


2S2 


CONSTITUTIONAL   CASKS    SIMI'LIFIKD. 


tlKiii  twfiily  vtiirs  iiftiT  this  c'()n)[)iiiiy  \v:is  oriiiuiiztnl. 
A  power  of  L'ovi'riiiniMit  wliii-h  actually  exists  is  not 
lo.^t  liv  non-UMT.  A  jrootl  <rovciiuiioiit  never  puts 
I'oiiii  its  extiaonlinary  power-,  exeept  undt-r  eireuni- 
staiu-es  wliii'li  reipiiro  it.  Tliat  goveruinent  is  the 
best  whieh,  wliih^  iierforminir  all  its  dutio,  intcrlures 
the  lea>t  with  the  lawful  pursuits  of  its  people." 

Diiveii  now  (piite  into  a  eorner,  the  railroad  pleaih'il 
that  liefore  this  law  was  passed,  it  had  pledged  its  in- 
eonio  as  security  for  the  iiaynicnt  of  dehts  incurred, 
and  had  leased  its  road  to  a  tenant  that  relied  upon 
tho  earnintrs  for  the  means  of  paying  the  agreed  rent. 
IJut  aL'ain  the  court  siiook  its  head  and  answered  : 
"  The  company  could  not  grant  or  pledge  more  than 
it  hail  to  give.  After  the  pledge,  and  after  the  lease, 
the  property  reniaineil  within  the  jurisdiction  of  thv' 
State,  and  t-ontinued  subject  to  the  same  governmental 
power  that  existed  betore." 

The  railroad  having  no  more  arguments  to  offer  gave 
up  the  light. 


MUNN  V.   ILL-INTOIS. 

[4  Otto,  113.] 

The  grain  elevators  of  Chicago  are  immense  struc- 
tures, holditig  from  300,000  to  1.000,000  bushels  at 
once,  acconling  to  their  size,  lint  they  are  in  the 
hands  of  a  few  great  capitalists,  and  the  Legislature  of 
Illinois,  coming  to  the  conclusion  that  their  charges 
were  excessive  and  unfair,  uiulertook  to  limit  them 
and  to  i)rescribe  l»y  lawthc  maximum  which  they  should 


■V 


aririinizod. 
sts  is  not 
ever  putsi 
•r  rii'ciiiii- 
■iit  is  tho 
iiitcrt'urt'S 

id  pU'iidcil 
\<xvd  its  in- 
;  incurred, 
c'lit'd  upon 
xrt'cd  rent. 
aiiswuriMl  : 
more  tliuu 
tiie  lease, 

tioU  Ot"    tllv' 

I'eruinentiU 


coNsriTiTiONAi,  r.\!«i>  siMri.iriK.i>. 


2s;; 


he  al)le  to  collect  from  their  customers.  The  elevator 
men  did  not  like  this  law  at  all,  and  made  a  j^reat 
elVort  to  have  it  declared  unconstitutional,  tirst  i)y 
the  Supreme  Court  of  the  State  of  Illinois,  and 
next  by  the  Supreme  Court  of  the  United  States.  Hut 
in  neither  iril)unal  did  they  succeed;  the  law  was 
sustained. 

As  a  (general  tliiusi  a  man  has  a  risjlit  to  sell  liis  -..oils  .-tt  his  own 
prices,  and  ea-not  l)o  conipeliod  to  part  with  them  ajjuiiist  his  will. 
But  there  are  several  exceptions  to  this  rule,  and  one  of  these  is 
the  case  of  eonnnon  carriers.  Munn  r.  Illinois  is  an  important 
case,  making,  as  it  does,  the  test  the  fact  tlial  the  emplo>nient  reir- 
ulated  is  a  public  one,  and  holdin;:,  as  it  does,  tb-:  tlie  l)usiness  of 
conductiuji  elevators  for  srain  is  a  "public"  employment  within  the 
rule. 


)  offer  gave 


leuse  stnie- 
hushels  iit 
are  in  the 

gislature  of 

eir  eharj^es 
limit  them 

they  should 


284 


CONSTITUTIONAL    CASES    SIMPLIFIED. 


cii APTEii  Yii.  —  miscella:n'eous 

CASES. 


''DUE  PROCESS   OF  LAW" 

LAND." 


LAW  OF  THE 


MUllIlAY'S  L.ESSEE  v.  IIOIJOKEX  LAND  CO. 

[18  How.  L'7L>.] 

Siiimu'l   Swart  wont,  of  Now  .lorsey,  a  public  officer 
of  I  lie  United    States,  was    IoiiikI    one    day   to   he   a 
debtor   to  the  jrovennnent.     Hy   virtue  of  a    statute 
of  Conjrress,  anlhori/ini:  the  hinds  of  del)tors  to  the 
irovernment  to  be  seized  and  sold  on  a  distress  war- 
rant issued  l)y  the  Secretary  of  the  Treasury,  Samuel's 
lands  were  taken  possession  of  in  this  summary  man- 
ner, sold,  and  the  i)roceeds  turned  into  the  Treasury. 
vSaniuel  took  no  heed  of  this  proceeding,  but  sold  the 
same  land  to  the  defeiuiant.     The  plaint i If,  who  was 
the  puichasi'r   at   the  govenunent  sale,  now  brought 
suit    atrainst    the  defendant  for  the  land.      The  hitter 
claimed  that,  as  the  amount  due  from  Samuel  to  the 
<rovernu)ent  had  never  been  ascertained  by  any  trial, 
and  as  the  warrant  uniler  which  the  land  was  sold  had 
not  been  issued  from  any  court,  the  sale  was  void,  as 
there  had  been  no  "  due  process  of  law,"  as  required 
l)y  the  Constitution. 


CONSTITUTIONM-   CASKS   SIMF'MFIKD. 


285 


30US 


W   THE 


Xl>  CO. 

I)lic  officer 

/  to  1)C  'A 
ii  statute 
[)is  to  the 
(tre.ss  wiir- 
,  Siunuol's 
iKirv  man- 
Treasury, 
lit  soUl  the 
r,  who  was 
w  hrousrht 
The  latter 
luel  to  the 
r  any  trial, 
IS  sold  had 
as  void,  as 
IS  required 


Rut  the  court  thoujjht  otherwise.  *'  Thoudi  due 
process  of  law,"  said  Mr.  Justice  Cuirris,  "  u'cnerally 
implies  and  includes,  avlor,  nns,Jittl,.>-,  rcj^ndar  alle-ra- 
tions  opporttniity  to  answer,  and  a  trial  accordinir  to 
some  settled  judii'ial  i)roccedinL's,  yet  this  is  not  uni- 
versally true.  There  may  he,  and  we  have  seen  that 
there  are,  esiscs  under  the  law  of  Kniiland  after  Mairna 
Charta,  and  as  it  was  hrou-rht  to  this  country  and 
aeted  on  here,  in  wiiich  process  in  its  nature  final 
issues  ajrainst  the  body,  lands  and  jjchhIs  of  certain 
pu!)lic  officers  without  any  such  trial." 

That  provisiion  in  tlii;  roiisliliiti..n  wliicli  says  that  no  ono  shall 
be  ilcpriveil  of  "llfo,  liberty  or  propiTty  without  due  process  of 
of  law,"  was   Introilucecl   to  puard  against  a  repetition  of  such 
practices  as  obtained   in   France  before   the    Hevolution,  where  u 
letter  from  the  Ivinfj   s.'iiL  a  man   to  tlie    Hastile  for  p>od.     Our 
ancestors  demanded   tliis   protection,  and   first  jrol   it  in   Ma-na 
Cliarta,  which  provides  "  that  no  freeman  shall  t)e  taken,  or  im- 
prisoned, or  disseized,  or  outUiweil,  or  banislied,  or  anyways  de- 
stroyed, nor  will  the  kin>,'  pass  upon  Idm  or  commit  him  to  prison, 
unless  by  the  judi;ment  of   his  peers  and   tlie  law  of   tlie  laud." 
The  phrases  "law  of  the  land"  and  "due  process  of  law"  are 
identical,  and  refer  to  the  common  or  statute  law  of  the  hind,  so 
far  as   the  Legislature  keeps  within  tlie  principles  of   ri-ht  and 
justice.     As  Maj;na  Clnirta  was  obtained  to  restrain  the  arbitrary 
exercise  of  kindly  powers,  so  this  provision  of  the  Constitution 
restrains  the  arbitrary  actions  of  Legislatures.     Daniel  Webster, 
the  great  expounder,  has  said  of  this  provision  :  "  Everything  which 
may  pass  under  the  form  of  an  enactment  is  not  to  be  considered 
the  law  of   tlie  land.     If  this  were  so,  acts  of  attainder,  bills  of 
pains    ami    penalties,  acts  of    contlscation,  acts    reversing  judg- 
ments, and  acts  directly  transferring  one  man's  estate  to  another, 
le-islative  judgments,  decrees  and  forfeitures,  in  all  possible  forms, 
would  be  the  law  of  the  land.    *     *     *    The  administration  of 
justice  would  be  an  empty  form,  an  idle  ceremony.    Judges  would 
sit  to  execut.  legislative  judgments  and  decrees,  not  to  declare  the 
law  or  administer  the  justice  of  the  country." 

"  By  the  law  of  the  land,  is  most  clearly  Intended  the  general 
law -a  law  whicli  liears  before  it  condemns,  which  proceeds  upon 


2H(; 


CONSTITITIONAL   CASKS   SIMI'LIIIKD. 


Inqiilrv,  and  r-iulers  ju.l-mrnl  .>uly  after  trial."  Hut,  us  laid  down 
in  Miirriiy'H  Ciiso,  aiipru,  the  same  forms  arc  not  always  necessary, 
in  some  eases  tl.c  frovenimeiit  may  interfere  directly  »nd  without  a 
trial.  So,  uiKler  tliis  provision,  a  p.r.ou  is  not  entitled  to  a  jury 
trial,  but  his  case  may  I.e  tried  l)y  a  jud-e,  or  military  offenders  may 
ho  tried  by  military  tribunals,  provi.led  everythinj,'  conforms  to  tUe 
cstabli.shed  priuciples  of  right  and  justice. 


CONSTITUTIONAL   CASKS   SlMrLll'IKD. 


S>87 


' '  EX  POS  T  FA  CrO"  LAWS. 


CAL.I>EIt  V.  BlJliLi. 


[3  Dall.  38(5.] 

In  the  year  1793  a  Prol)ato  Court  in  Connecticut 
rendered  ii   decree  refusill^f  to  admit  a  certain  will  to 
probate,  and  the  parlies  prcsentinjr  it,  having  faiU-d  to 
appeal   within  tiie   time  prescrihed   hy  statute,  there 
was  nothiuir  further  that  the  court  could  do  for  them 
in  the  matter.     At  this  juncture,  the  Lejrislature,  at 
their  re.piest,  passed  a  law  setting  aside  the  decree  of 
the  Probate  Court,  and  ordering  a  new  hearing.     The 
court  heard  the  case  again,  and  th'-s  time  made  a  de- 
cree establishing  the    will.     The  other  side  now  ap- 
pealed to  the  Su|)renic  Court    of  the  United  States, 
claiming  that  the'act  of  the  Legislature  was  an  exjwst 
facto  law  and,  therefore,  void.     But  the  SupnMue  Court 
didnota-rree  with  them.     "  In  my  opinion,"  said  Mr. 
Justice     Chaj'.e,     "the   true    distinction     is    between 
ex  poxt  farfo  laws  and  relrospectivo  laws.     Every  ex 
post  facto  hi^y  must  necessarily  be   retrospective,  but 
every  retrospective  law  is  not  an    ex   post  facto  law. 
The  former  only  are  prohibited.     *     *     *     The  plain 
and  obvious  meaning  and  intention  of  the  prohibition 


2HH  CONSTITUTIONAL   CASKS   SIMrLIl'lKI). 

is  thin:  iluit  the  Lcirisliituro  rtlmll  not  pass  laws  after 
!i  fiut  ihnw  hy  a  sultjcct  or  citizen  whifh  shall  have  re- 
lation to  su(-h  fact,' and  shall  punish  him  for  havin<? 
(lone  it.     Tho  prohibition  considc'red  in  this  light  is  an 
additional  huhvark  in  favor  of  tho  personal  s'  iMirity  of 
the  snl.j'H't  to  protect  his  person  from  punishment  hy 
U.j:islalivc  a<-ts  hearinir  a  retroactive  operation.     I  do 
not  think  it  was  intende.l  to  secure  the  citizen  in  his 
private  ritrhts  of  either  properly  or  contract.     I  will 
state  what   laws    I  consider  > x  p<,st  favto  within   tho 
woi'ds  and  intent  (d'  the  prohiliilion  :  — 

"1.  Everv  law  that  makes  an  action  done  before 
the  passa.L'e  of  the  law,  and  which  was  innocent  when 
dftno,  criminal,  and  punishes  such  action. 

"  i.  Everv  law  that  ajjtjrravates  a  crime,  or  makes  it 
(rroater  than  it  was  when  committed. 

"  .T.  Every  law  that  chan^'cs  the  punishment  and 
inllicts  a  jrreater  punishment  than  the  law  annexed  to 
tho  crime  when  committed. 

.'  t.  Every  law  that  alters  the  lejxal  rules  of  evidence 
and  receives  less  or  ditlerent  testimony  than  the  law 
re.piired  at  the  time  of  the  commission  of  the  otfence, 
in  order  to  convict  tho  otfender." 

And  as  the  Connecticut  statute  did  not  fall  within 
any  of  the  above  four  divisions,  the  court  held  that  it 
was  valid. 

Th.-  Constttutlon  prohibits  both  the  States  and  the  United  States 
from  passing  .x  post  facto  laws.  All  retrospective  1;'^^  ;!^;o"l'l 
st-em  to  be  embraced  in  the  term  cjc  post  facto  laws,  bnt  Calder 
V  Bull  determined  that  in  the  United  States  Constitution  these 
words  are  Umited  to  laws  of  a  criminal  nature.    Laws  of  this  Kind 


iiws  after 
1  liiive  re- 
or  hiiving 
light  in  »n 
/  LMirit y  ot" 
ihment  l)y 
()».  I  <1<> 
zen  in  liis 
I't.  I  will 
vitliiii   tlio 

:>no  before 
cent  when 

>r  miikes  it 

linient  iincl 
innoxod  to 

of  evidence 
liin  the  hiw 
the  offence, 

full  within 
leld  that  it 


I  United  States 
le  laws  would 
vs,  but  Calder 
stitution  these 
tv8  of  this  Kind 


CONHTniTIONAI.    CASKS    SIMI'I,!  I'l  l',l>. 


2«l) 


aci'orilliiH    to    Mr.    Jimlico    C'liasc   may    bt;    classtMl    under   (our 
heaiN:  — 

1.  .1  line  that  mn/rf.-i  un  iiclion  dime  hyfuiY  Ihe  jmnsiiuj  n/  tin'  hiir, 
anil  leliirh  was  iniuH.i'iit  wli'U  done,  crimiiuil,  and  puniKlics  mu-li 
action.  —  At  (Miininoii  law  adultery  wan  not  a  crliniiial  'ifffiice,  A. 
coniuills  adultery  lii  Deeeiuber,  is.'iO.  In  .lanuary,  lo.M,  I  he  l.eii\x- 
ture  passes  a  law  nuikiuK  a«lulterv  punishable  with  line  and  IniprU- 
onuient,  whether  connnitti'd  before  or  after  its  p:iMsiiKe.  The 
statute  would  be  void  as  to  A.'s  act,  lieeause  i.r  jmut  facto. 

2.  A  lair  ajijraiuitiiiij  a  n-inii'  or  makimj  it  i/realfr  than  it  vax  ivhen 
committril.  —  In  I8S0,  liauiblin;;  In  llie  Stale  of  Missouri  was  a  mis- 
demeanor. A  State  law  passed  In  (ssi.iiud  declaring'  those  con- 
victed  of  gambling  lu  1880  to  be  felons,  wcnild  be  ex  post  facto  and 
void. 

3.  A  law  changing  the.  pnniahmcnt  and  injliciin/j  a  tjrealer  intnish- 
ment  than  the  law  annexed  to  the,  crime  when  committed.  —  A  negro  was 
tried  In  Alabama  In  ISCd  for  bur;;!ary.  After  the  crime  was  com- 
mitted, the  punishment  for  buriilary  was  changed  from  Imprisiui- 
raent  for  three  years  to  Imprlsoiuncnt  for/rc  years,  or  death,  in  the 
discretion  of  the  jury,  .t  was  held  that  the  negro  could  only  be 
punished  under  the  old  law.  Miles  v.  State,  40  Ala.  ;t'.i.  But  a  law 
which  ameliorates  the  offence  by  making  the  pmilshment  less  Is  not 
within  the  rule;  and  a  subseipient  increase  of  punishment  for  a 
second  offence  is  not  ea;  -post  facto.  Hand  v.  Commonwealth,  ? 
Gratt.  738. 

4.  A  law  which  alters  the  legal  rules  of  evidence  and  receives  less  or 
different  testimony  than  ims  required  at  the  time  of  the  commission  of 
the  offence,  in  order  to  convict  the  offender.  —The  law  of  Alabama  was 
that  a  conviction  could  not  be  had  on  the  testimony  of  an  accom- 
plice. Subsequently  a  statute  was  passed  enacting  that  this  law 
should  not  extend  to  misdemeanors.  IJut  It  was  held  that  this  could 
not  apply  to  misdemeanors  committed  before  Its  passage.  Hart  v. 
State,  40  Ala.  32.  But  the  following  kinds  of  laws  have  been  held 
not  within  this  provision,  viz. :  A  law  which  changes  the  practice  In 
criminal  cases,  but  preserves  to  the  prisoner  his  substantial  rights 
(State  V.  Manning,  14  Tex.  402;  State  v.  Corson,  5i»  Me.  137);  or 
Which  takes  away  from  him  the  privilege  of  mere  technical  objec- 
tions (Com.  V.  Hall,  i)7  Mass.  570) ;  or  which  limits  the  number  of 
peremptory  challenges  to  jurors  (Dowling  v.  State,  5  S.  &  M.  004) ; 
or  modifies  the  ground  of  challenge  for  cause  (Stokes  ti.  Teople,  53 

1»  ^ 


2'.M> 


CONSTITITIONAI,   CASES   SIMPI.IKIKD. 


N.  Y.  H'.n  •,  or  p«nili8  a  cl..inu'.>  of  venu«  lor  the  purpose*  of  a  fair 
trial.    (J«it  r.  Hlatf, '.»  Wall.  35. 

The  supremo  Court  hav«  latHy  .xU'nde.l  the  rules  In  Calder  f. 
null  an.i  hav  announcMl  tlu-  d..ctr.n.  thai  .„vj  b.w  r<>>">'^i  ''A'" 
t,,e  nnnmi.sio,,  of  an  ..frnc-  irhirh  alOr.  the  p.Mtion  of  a  P<*rtil  U,h,» 
,li.n<lvm,tao.;  I«  an  er  post  facto  law.  and  void  as  to  him.  Krmg  v. 
Slate,  I'l  ("t'nt.  L.  J.  !(0»- 


CONSTin  TIONAI.    CASKS    SIMPI.IKII;!). 


2!»l 


oscii  of  a  lulr 


I  In  Cftlder  v. 
>  fdnsid  afler 

II  parlij  til  his 
ni.     Kriug  v. 


"  TW'KP:  hV  JKOPAUDY." 


UNITKI>   HTATKS   v.  I'KltEZ. 

[',•  wiH'iit.  r.7'.».j 

Josepli  IVmc'Z  was  Irii-d  in  New  York  lor  a  capital 
offence  ;  hut,  tlic  jury  heinj;  uiialde  to  iiirree,  wore  dis- 
clmrgctJ  l)y  the  court.  Josepli  I'crez  after  wards 
claimed  his  discharire,  ur-ruing  that  he  could  not  be 
tried  ajraiu  a-  he  ha«l  l.eeu  already  once  in  jeopardy 
for  the  crime  charjred. 

But  the  court  did  not  think  so.  "  We  are  of  opin- 
ion," said  .ludge  SroitY,  "  that  the  facts  constitute  no 
legal  har  to  a  future  trial.  The  prisoner  has  not  been 
co'iivicted  or  ncfjuifted,  am\  nuy  again  l)e  put  on  hia 
defence." 

Art.  V.  oftlie  ainendiiu-uts  to  tlie  Constitution  of  tlio  United 
Status  suys  that  no  person  shall  "  be  fuibject  fur  the  same  offuuce 
to  1)0  twice  put  la  jeopardy  of  life  or  llinl)."  The  nieanlns,'  of  this 
Is  that  one  trial  and  one  verdict  protect  a  person  ajjalnst  a  subse- 
quent accusation  for  the  same  offence,  whether  the  verdict  be  for 
or  against  him,  or  whether  the  courts  are  satisfied  with  tlio  verdict 
rend"  red  or  not.  Therefore,  wlien  a  person  charged  with  a  crime 
U  put  ou  trial  before  a  court  of  competent  juriwdlctlon,  and  a  jury 
has  been  empanneled,  he  is  "  in  jeopardy,"  and  cannot  again  be  tried 
lor  the  same  crime,  whatever  may  be  the  result  of  the  first  trial. 

Ttiere  are,  however,  as  usual,  some  important  exceptions  to  this 
rule,  viz. ;  _^ 

1.  Wlicre  the  prisoner  Is  convicted,  but  on  his  own  appeal  the 
judgment  Is  set  aside  either  by  the  court  that  tried  him,  or  aa  ap- 
pellate court. 


292  CONSTITUTIONAL    CASES   SIMPLIFIED. 

2.  Where  the  court  which  tried  him  has  no  jurisdiction  of  the 
case . 

a.  Where  the  indictincnt  was  defective. 

4  Where  the  jury  is  disclmrped  through  necesBity,  as  when  a 
juror  takes  sicX,  or  L,  or  the  jury  cannot  a.ree.  as  in  Perez's  case. 

In  all  these  caees  the  prisoner  .nay  be  put  on  a  second  trial,  for 
,0  his  not  i.een  in  legal  ..j-pardy"  within  that  term  as  used  in 
the  Constitution. 


FIED. 
urlsdiction  of  the 


CONSTITLTIONAL    CASKS    SIMI'LIFIKD. 


2it3 


^esBity,  as  when  a 
as  in  Perez's  case. 

a  second  trial,  for 
t  terra  as  used  in 


"  CRUEL  AND  UNUSUAL  FUNlSllMENTS." 


WILKEKSOX  V.  UTAH. 

[9  Otto,  130.] 

Wilkerson  was  tried  in  tlio  country  of  the  Mormons 
and  conviftcd  ofthe  niurdor  of  William  Baxter,  in  duly, 
1877.  According  to  the  law  of  Utah  a  person  convicted 
of  any  crime,  the  punishincnt  of  which  is  death,  may  be 
shot,  han<red  or  beheaded,  as  the  court  may  direct  or  as 
the  criminal  may  choose.  AVilkcrson  not  making  the 
grim  election  which  the  law  allowed,  the  judge  sentenced 
him  to  be  shot,  and  the  jmint  was  made  in  the  Supreme 
Court  that  to  put  a  man  to  death  by  shooting  was  a 
"cruel  and  unusual  punishment"  within  the  meaning 
of  those  words  in  the  Constitution. 

But  the  court  was  not  of  this  opinion.  "  Difficulty, 
said  Mr.  Justice  Clutord,  "  would  attend  the  effort 
to  define  with  exactness  the  extent  of  the  constitu- 
tional provision,  which  provides  that  'cruel  and  un- 
usual punishments'  shall  not  be  inflicted;  but  it  is 
safe  to  affirm  that  punishments  of  torture,  such  as 
those  mentioned  i)y  Blackstone,  and  all  others  in  the 
same  lino  of  unnecessary  cruelty,  are  forbidden  by  that 
ameuument  to  the  Constitution." 

The  cases  mentioned  by  Blaclistone,  are  where  the  prisoner 
convicted  of  treason  was  drawn  on  liurdles  to  the  place  of  execu- 
tion, and  then  disembowelled,  his  entrails  burned  before  his  eyes, 
aud  after  being  hanged  and  cut  down  alive  a  few  times  lie  was 


I » 


2U  rONSTlTUTlONAL   CASES    SlMPMFIKU. 

:i!:ru:L:;:"  c^;;i;r;:;,:,i;.^ ;:',. «»..-. ,-,. ... ».,, .»- 

nolcon»lltutlo»»l.    Ho  AU  K»w  ..Suoan,  l»i«>- 1-  K«t.- 


Table  of  Abbreviations  in  this  Volume. 


Ala.      .     .     . 
Allen    .     .     . 
Am.  L.  Hojjr. 
Am.  L(l.  ("as. 
Atk.      .     .     . 


Barb.    .     . 
Barnard.  Cli. 
Beav.    .     . 
Ding.    .     . 


Bisp.  Eq. 
Blatchf. 

Bridg. 

Bro.  Ch. 


Cas.  Temp. 

Talbot. 
Cas.  Temp, 

Finch     . 

Csnt.  L.  J. 


Alabama  Snpri'tno  Court  Ke()orts,  1S40- 
Allcn's  Massachusetts  Reports,  18(;i-18t;7. 
AnK-ricau  Law  Hegister,  IH— . 
American  Lcailing  Cases,  1h71. 
Atkvns'  Knglish  Clianccry  Reports,  1736- 
1755. 

Barbour's  New  York  Snpreme  Court  Re- 
ports, 1847-1875. 
Barnardiston  Hnsjlish  Ciiancery  Reports, 

1710   1741 
Beavan's   English   Rolls   Court   Reports, 

18;U)-lH0r.. 
Bingham's   English   Common   Pleas   Re- 
ports, 182-i-lH;J4. 
,   Bispham's  Treatise  on  Equity,  1878. 
,   Blatchford'a  U.  S.  Circuit  Court  Reports, 

1845- 1882. 
.  Bridgiuan's   English   Ccmmion   Tleas  Re- 
ports, 1613-lti21. 
.  Brown's  English  Chancery  Reports,  1778- 
17!>4. 

Cases  in  the  time  of  Chancellor  Talbot, 
1734-1738. 

Cases  in  the  time  of  Chancellor  Finch. 

Central  Law  Journal,  1874- 

(  25)5  ) 


21)  tl 

Oh    Div. 

• 

Co. 

•     • 

Cillcs  v. 

C. 

t'oim. 
C.x.li'V  1 
Const. 
Cox.  Ch. 

line. 
L.    . 

CraiR'h       t 


Dall.      .     . 

Daly      .     . 

Dana    .     . 

Deady 

De(i.  &  Sm 

Dr.  &  Sin. 

Dr.  &  War. 

Dyer.    .     . 

Eden     .     . 
Kq.  Cas.    . 
E<i.  Cas.  Ah. 
Ecp.      .     . 


T.VIU.I,    <>K    Alir.KlVlAriONS. 

Knulish   Uijili  Cunrt,  Cluuu-cry  Division, 

Hi'liorts.  1H7.") 
Coke's    Kii^lisii    Kings    Honrli    Reports. 

1,'>72-1  <■>!('.. 
Colles'    Kn.Lflish  House  of  Lords  H»'ports, 

1(;;»7    iT'l  I. 
.  Connectieul  Supreme  Court  Reports.  1K14- 
Cooley  I'rineiples  of  Constitutional   Law, 

lsx-2. 
Cox's     Kurdish    Cliaiieery    Cases,    17S;5- 

I7'.tf.. 
Cranch's  U.   S.   Siiinenie  Court  Uei)orl9, 

IHOO-LSlTn 

Dallas'    r.    S.    Sui>reino    Court    Reports, 

I7".t()    IHOO. 
Daly's  New  York  Conunon  I'leas  Reports, 
185'.»-1SH0. 
.   Dana's  Kentucky  Reports,  LsliiS-li^lO. 
Di'ady's    V.    S.    Cirenit    Court   Reports, 

IHC.l  - 

Deliex  and    Snial.''s    Kn.j;lisl>  Viee-Chaii- 
oellor's  Reports.  IsiC  -  l.s.Vi. 

Drewry   and   Sinalo's   English   Cliancery 
Reports,  lsr,()-lsr.5. 

Drury  and  Wancn's  Irish  Chancery  Re- 
ports, 18  11  -islii. 
.   Dyer's    English    Kings     Bench    Reports, 

.  Eden's  Chancery  Reports,  l7o7-1767. 
.   English  E(iuity  Cases,  1870- 
.   English  Equity  Cases  .\l)ridgod,  I7i)2. 
.  Espinasses  English   Nisi  Trias  Reports, 
I7'.)a-1807. 


<; 
(i 

II 

II 

II 
II 


1 


TAnr.K    OK    AHU!!KVIATIf)NS. 


■J!I7 


Division, 

(i rant's  ('as. 
Gratt 

Hi'ports. 

11.  &  M.    .     .     . 

Reports, 

Hare     .... 

rts.  1811- 
)ii!il  i.aw, 

11.  L.  Cas.     .     . 

How 

L>s,    17h;5- 

Hun      .     .     .     . 

t  Reports, 

Ill 

Reports, 

Iiid 

Indermaur  Ld.     . 

vs  Reports, 

Cas.  E(i.      .     . 
Iowa     .     .     .      . 

i-isto. 

Ir.   Rep.   0")     ■ 

[    Reports, 

Jao.  &  W.     .     . 

Viee-Cliaii-    " 

Johns.  .     .     ■ 

{'liaucery 

Johns.  Ch. 

aneerv  Ro- 

Jur. (n.  s.)  .     . 

ll    Reports, 

Kas.      .     .     . 

L.  R.  Ch.  .     . 

7-1767. 

L.  R.  Ch.  App. 

(l,  17'J2. 
us  Reports, 

L.  R.  Eq.  .     . 

Crnnt's  IV'nn-ylvania  Cases.  ls.")2- IHC);?. 
(Irattan's  Mrgiiiia  Reports,  iHll-lHHl. 

lleinniing    and      Miller's    Knjrlisli     Viee- 

Chaneellor's  Reports.  l«t;2    isfi.^. 
Hare's  Kii<;lish  Vice-Chancellor's  Reports. 

18 11- IS.-,;!. 
English  House  of  Lords  Cases.  1817-  Istlf). 
lIo\var<rs  r.  S.  Supreme  Court    Reports, 

lKi;;-i8(i(i. 
Hun's  New  York  Supreme  Court  Reports, 

187;^- 

lUinois  Reports,   181'.). 

Iniliana  .Supreme  Court  Reports,  1848. 

Indermaur's    Lcadinjr   Cases    in    iMpiity, 

18H1. 
Iowa  Supreme  Court  Reports,  18;');'). 
Irish  Reports,  Conmion  I. aw.  1867-1878. 

.  Jacob  and  Walker's  EuL'lish  Chancery  Re- 

l)r.rts,  18T,»-1821. 
.  Joluison's  New  York  Reports,  I8()r.-18-_>!1. 
.  Johnson's   New  York  Chancery  Reports, 
l,sll-18-.>:5. 
En<ilish  Jurist  (new  series).  18.-).')- 1856. 

.  Kansas  Supreme  Court  Reports,  l^s62- 

.  English    Law  Reports   (Chancery)   1866- 

187.'). 
.  Enirlish  Law  Rei.orts  (Chancery  Appeal), 

1M66-187.'). 
.  En<rlisii    Law     Reports    (Equity),   1866- 

1875. 


29H 


TAIU-K   (»!•    AUIJKKVIATIONS. 


I-.  H.  H.  L.  (as.  .   Knj^lisli  Law  Reports  (House  of  Lords), 
iH(it;-i87r>. 
.   Kiijrlish  Law  Times  (now  series).  18r)0- 


L.  T.  (N.  s.) 
Macn.  &  G. 
Macq.  .     . 
Muss.   .     . 


.   Macnaghteii  and  (lordon's  Kiiglish  Clian- 
cery  Cases,  1H-I'.t-1H51. 
Macquoeirs    Seoteh    Cases    in    House    of 

Lords.  lHr)l-187:<. 
Massaehusetts    Sni)renie    Court   Reports, 

Md Maryland  Supreme  Court  Reports,  1H.")1- 

Md.  Ch.     .     .     .   Maryland  Cliancery  Reports,   1H47-1H.-)L 
Me.  .     .   Maine  Supreme  Court  Reports,  18-20- 

jl..,  .  .   Mississippi  Supreme  Court  Reports,  IH 18- 

Mob Moseley's     English     Cliancery    Reports, 

17-Jt;-  1731. 
My!u(  iv  I'v.  .     ,   ivrvlne  and  Cr.aig's  Phiglish  Chaneery  Re- 
port:^   1836-18  K). 

N.  H Now  Ilampsliire  Reports,  1816- 

N.  J.  (E(i.)   .     .   New  .lersey  Iviuity  Ri-ports,  1830- 

]>f.  Y New    York    Court    of   Appeals    Reports, 

1847- 


Otto 


Otto's   U.    S.    Supreme    Court   Reports. 
187.1- 


Paige  Ch.  .     .     .  Paige's    New    York    Chancery    Reports, 
1828-184."). 

l»ji.  St Pennsylvania  State  Reports,  1844- 

IVt Peter's  United  States  Sujjreme  Court  Re- 
ports. 1827-1842. 

Philn Philadelphia  Rei>orts.  1850. 

Pomeroy  Const.  .   I'omeroy's  Manual  of  Constitutional  Law, 
L 1883, 


Lords)* 

1850- 
8h  ("lian- 
iouae   i)f 

Reports, 

•ts,  1851- 
<47-lHr)J. 
1820- 
rts,  1818- 
Reports, 

luery  Rt'- 


30- 
Reports, 


;    Reports, 


Reports, 

44- 

I  Court  Re- 


itional  Law, 


TAIU-E   OK    AHHUKVIATIONS. 


2!tl> 


Prec.  in  Ch.    . 
r.  Wms.    .     . 


.  Finch's   Precedents   in  Chancery,   1680- 
17-':{. 
Peere   Williams'    English   Chimeery    Re- 
ports, n;',tr)-i7:?t;. 


Redf.    .     .     . 

Rich.  Eq.  .     . 

Sandf.  Ch.     . 

Sel.  Cas.  Ch.  . 
Sim.      .     .     ■ 


Sim.  (n.  s.)  . 

SiiellEq.   .  . 

Story    .     .  . 
Swanst. 


Re<lliel(l's  New  York  Surrogate  Reports, 

1H57-1HHO. 
Richiudson's    South    Carolinn    Chancery 

Reports.  1814-184*). 

Sundford's  New  York  Chancery  Reports, 

184:5-1847. 
Select  Cubes  in  Chancery  (English). 
Simon's    En<ilish    Vice-Chancellor's    Re- 
ports, i8-_>(;-i84i». 
Simon's     English    Vice-Chancellor's    Re- 
ports (new  series),  1850-18.')4. 
.  Snell's  Treatise  on  Etpiity  Jurisprudence, 

1881. 
.  Story's  U.  S.  Circuit  Court  Reports,  1830- 

184.'). 
.  Swanston's    English    Chancery   Reports, 
1818-1810. 


Tex.     .     .     . 

Tud.  Ld.  Cas. 

Tud.  Ld.  Cas. 

Con.       .     . 


.  Texas  Supreme  Court  Reports,  184G-' 
.  Tudor's  Mercantde  and  Marine  Cases. 

■    Tudor's  Leading  Cases  on  Conveyancing. 


Vernon's  English  Chancery  Reports,  1681  - 

1720. 
Vesey,    jr.'s,  English  Chancery  Reports, 

1780-1810. 
,  Vesey,    sr.'s,  English  Chancery  Reports, 

1747-1756. 


300  TAIU-i:   <»K    AHUKEVl.vnOXH. 

Ves.  &B.  .     .     .  V«-sc-y  &  noimics'    Ki\iiMi  riuuicorv  Ke- 

Yi„    ,Yi,_    .     .     .  ViiuM's  AUridiifini'iit  <>f  Law  ami  E.iuity, 

I7;tl-17'.>». 
yt ViTiiioitt   Siiproiiu'  Court  I{ei'"«'t'^'  1^-'^" 


Wall.     . 


Walla(v"s  r.  S.  Sniiri'iiic  Ccurt  Reports, 
isiwj   IhT.'). 
Wh.&Tn.l.  I-<1.  .   Wl.il.'    &    Tii<l..r'«     Lfmling     Cases    in 

Cas.  K',.      .     .        Kquity. 
^Vlioat.       .     .     .    NVlieaton's  Uiiito.l  States  Supreme  Court 

Reports.   iNlC- Is-JT. 
■^Yi^ Wisconsin  Supreme  Court  Reports,  \xhS- 

\V.  l{.   .      . 

Wuis.  Heal 


Assets 
AV.  \  a. 


Kiiillisli  Weekly  Reporter,  \H'i:\- 
Williams"  Treatise  on  Real  Assets,  18G1. 
West    Vin^inia   Supreme   Court    Reports, 


l,H(;:i 


ncory  Ke- 
1(1  E(iuity, 
rts,  182(5- 
t  Ki'ports, 
Ctisf.s  in 
I'liu'  ('oiirt 
Dils.  1h:)3- 

)  — 

iSL'tS.    lHt',1. 

•t    Reports, 


INDP^X. 


ACriDKNT. 

Ki'lii'f  in  f«iuity  bi-causc  of,  8'J-O:!. 
Loss  of  docmnonts,  8-'. 
Iinperfi'cl  cxrcutlon  of  powers,  8(i. 
Powers  c'oiilllct  with  trusts,  8K. 
Accldeiitiil  forfoiturfs,  8;>-'.)l. 
Accidental  pennllii'^',  !•■-',  '.t;i. 
When  equity  will  not  relieve,  h4. 

ACTIONS. 

K.iuity  will  enjoin  iictions  at  law  when,  r.".)-131. 

ADMINISTUATION. 

Uule  as  to,  of  assets,  5".>,  (iO,  lil. 
MarshallinfX  assets,  <■,•_',  C.S. 

ADVANCKMKNT. 
Rules  as  to,  15. 

APl'HAlSKMliM'  LAWS. 

Constitutionality  of,  :i4'.t,  -'.".7,  259. 

BANKUlFrcY. 

When  States  may  pass  bankruptcy  laws,  250. 

1U-:L!,8. 

Nuisance  from,  14:1-1+5. 

"  HILLS  OF  CKKIMT." 
What  are,  211-214. 

nORHOWlNCx  MONKV. 

Power  of  States  as  to,  211-l'U. 
"Bills  of  credit,"  1>1 1-214. 

CAKHIAGES. 

Tax  on,  not  a  "  direct  tax,"  104. 


(301) 


M)2 


INDKX. 


CESTUI  (ilK  TUirST. 
Dt'llnilioii  of,  :i. 

(IIAIMKS.     (Sec  HK.iiri.ATioNH.; 

CIIAUITAHLK  TIUSTS. 
I).,  not  fiill,  l.'i),  LM. 
The  "cy  prt'f*"  (loclrlnc,  L'O,  21 . 

CHINKSK. 
StutiiU'  prohlbltliiK  under  ptMuilty  emigration  of,  209,  270. 
Statute  onlerlnB  f^ueues  of,  to  lie  clippetl,  294. 

C()MM1;K<'K. 

Power  of  States  to,  215,  227. 
Local  refjulationN,  21H. 
Detlnitlon  of,  2iit. 
Anil  the  police-  power,  225-227. 

CONSTHITCTIVK  TRUSTS. 

Vendor's  lien  for  purchaHO  money,  22,  23. 

CONTRACT. 

Kipiliy  will  enjoin  breach  of  contract  when,  i;!2-134. 

CONTRACTS. 

A  },'rniit  from  a  State  Is  a  contract,  228. 

Rut  public  ofllces,  are  not,  2;!0. 

Nor  are  licenses,  232. 

Cliarters  to  private  corporations  are,  2;U-241. 

Exemptions  from  taxation  are,  237. 

Must  be  expressed,  212. 

Wliat  laws  Impair  "i)l)ligation  of  contracts,"  246. 

Insolvent  laws  void  as  to  past  contracts,  24(!,  253. 

Effect  of  statute  of  limitations,  24i>,  254,  255. 

Of  stay  under  ai)praisement  laws,  24'.t,  257-250. 

Of  laws  at)ollshlng  imprisonment  for  debt,  24'.>. 

Of  laws  exeinptins  property  from  execution,  249,  200,  201-266. 

Eminent  domain,  202,  203. 

CONTRIRUTION. 

Between  sureties,  the  doctrine  in  eiiuiiy,  71. 

CONVERSION. 

The  doctrine  of,  39,  40,  41,  42,  43. 

COPYRIGHT. 
At  common  law,  107. 


INDKX. 


3(»a 


CoifHIGUT  — ContlinitMJ. 

UlldlT  HtlUllll'S,   lilW. 

Wlieu  einilly  will  tiiijulii  iilrucy,  UIH. 
Bona  Jidi' tihvh\uvmviMH,  Hi",  KIH. 

COUPOUATIONS.     (See  iiIhd  |{aii.ii<>,mih.) 
Cliiirtcrs  to  privato  corporiitioiis  iirt'  coiitrucls,  234. 
Ho  ax  to  coUaH'iHl  sllinilatloii  tlu'^'in,  '.';t7. 
Contracts  not  iniplicd,  LMJ. 
Cliartei-H  to  municipal,  not  contracts,  244. 

OUKniTOHS. 

Convuyinicus  to  defraud,  lo'.t. 

CRUEL  AND  UNl'SUAL  PUNISHMENT. 

What  iH  a,  a!l3,  1.",I4. 

CY  PKES. 
Tiio  doctrine  of,  21. 


DEFINITIONS. 
Of  trust,  ;i. 
Of  trustee,  3. 
Of  centni  qw  trust,  3. 
Of  executory  trust,  7. 
Of  executed  trust,  7. 
Of  volunteer,  8. 
Of  resultlnj;  trust,  15. 
Of  "cy  pirs,''  21. 
Of  general  legacy,  lU. 
Of  specillcd  Unaty,  :!4. 
Of  deinon-strative  legacy,  .34. 
Of  precatory  trusts,  11,  12,  13. 
Of  advancement,  15. 
Of  vendor's  lien,  22. 
Of  pecuniary  legacy,  34. 
Of  donatio  vwrtin  eiinna,  30. 
Of  conversion,  31),  40. 
Of  election,  4(>. 
Of  satisfaction,  55. 
Of  mistake,  07. 
Of  reconversion,  40. 
Of  performance,  50. 
Of  accident,  S3. 


804 


INDF.X. 


HI.IINITK'NS  — (iMitlnurd. 
(»(  nctiiiil  (lantl,  \'>'>- 
(>(  construrtivi'  fniiul,  lii"i. 
Of  liijiim'tlun,  i;iit. 
"  Diftcl  lax,"  r.H. 
"  Duly  "f  ti>miiii:i',"  '.'"'■'• 
"  Mill  of  iTfilli,"  I'H. 
"  Uf^iilalioii  ii(  cuiiiiiuTcr,"  LM5-1".'7. 
"('i)iiiiin'rt <■,"  'Jl'i. 
"  Ki'iliit'iil  iliiiiialn,"  -I'l-. 
rollcf  iHiwcr,  JtU. 
"Public  einplii.viiu'nt,"  !'■<:!. 
"  I'llvllt'iics  or  iininuiiltii'f*,"  -'-,  -"♦.  -'^• 

"  Citl/.rlis,'    '.TJ. 
"  Involiiulary  ■.irvllii'lc,"  -'Tt!. 
"  Diu'  prix'i"*^  <)(  law,"  i.'"^-*  '-'(*'>. 
"  Law  of  tlie  luiul,"  L'f*4-2»(;. 

"  /•;/  /I"."*  /"'■'","  -'f^T-  -"•"'• 

"Twici'  In  ji'opanly,"  -"'l,  •-".••-'. 

"Cnu'l  auil  imusiial  inmisliiiifiit."  '.'n:!,  'J'.M. 

"inui.cr  TAX." 

What  is  a,  i;i4. 

DOMIClh. 
Kfftct  of  ilomk-ll  of  creilltor  on  Insolvont  laws,  251,  1'52. 

DONATIO   MOHTIS  CAUSA. 

Uiiio  us  til.  ;;i;.  I'-r,  .'w. 

"DTK   TKOCKSS  Ol'  LAW." 
What  is, -'M, -'sti. 

Dl'TIKS. 

State  ilutlfs  on  iiDpurls,  l'.»7,  108. 
Statu  (Iniifs  oil  exports,  rj'J-i'Ol. 

"DrrV  OK  TONXAOK." 
What  is  a,  I'O'J. 

KLEOTION. 
The  (loi'triiU!  of,  44,  45,  4t;,  47. 

ELF.V.VTOKS. 
Statutes  regulating'  charges  of,  constitutional,  282,  283. 


KM 

n 

K 


L 


INDKX. 


wr) 


EMINENT  DOMAIN, 
n.llnetl,  :'•.:'. 
Kfffct  of  |M)wi'r  of,  (111  frauchlKe!<,  l'''''-'i  '■i*'>'-^- 

KXK.rrTKD  TursT. 

T>ellultl<iu  of,  7. 

tiXKCCToUV  TKl'STS.       Sic  ritr.'^T!*.) 
Dc'lluiilouof,  7. 

r.xKMrrioNs. 

Constltutloimllty  of  law*  exemptlnu'  proiuTly  from  .xiviilor.  •.'i'", 
•jci. 

F.XFOUTS. 
State  duties  on,  l!)!t-201. 

"K\  rOST  FACTii"  LAWS. 
Wlittl  arc,  anil  wlmt  ivro  not,  l'H7-'.'90. 

FEOKUAL  AOENCIKS, 
Ciiimot  be  tiixi'.l  l).v  Stat.-,  aoL'-i'o.".. 

KI1)U(  lARY  RELATION. 

Uiirtjalns  bet\v*tu  persons  In,  107. 

FORI'EITt'KES.     fSee  ri:NAi.riKH  and  FoHFK.nritKS.) 

FORMER  EMl'LOYMENT. 
Statements  as  to  when  enjoined,  17';. 

FRAUD. 

Contracts  In  restraint  of  niarrliiKe,  inj,  lo:i. 

Hargains  with  heirs,  104. 

nargulns  between  persons  in  fldueliuy  reliitlon,  107. 

Frauds  upon  creditors,  100. 

Frauds  upon  marital  rights,  111,  ll-^ 

Frauds  upon  powers,  113,  1  U. 

Bona  Me.  purchasers  protected,  115. 


HEALTH.  ^,    „„_ 

Protection  of  public  liealth  under  poUce  power,  Wi,  266. 
Statute  prohlbltlnfj  Importation  of  cuttle,  'JW,  2C'J. 

HEIRS. 
Bargains  with,  104. 

HOUSE  OF  ILL-FAME. 
Equity  will  enjoin,  13«.  ^^ 


3()»} 


IN'DKX. 


HITSBANI)  AND  WIFE. 

Frauds  on  miiritul  rifilits,  111,  11-'. 

IMPLIKI)  I'OWKHS. 
Powers  impliod  in  ('i)nstitutlon,  I^.VIST. 

IMFOUTS. 

Stalf  (UitU's  on,  1'.>T,  li'f*. 

IMPRISONMENT.  ,    ,. 

"  Laws  ubolishinsi  imprisonment  for  ilebt  lonstitulionnl,  L'4,',  loU. 

IN.HNC'TIONS.     (See  A.  tkns  ;  CuNTii.uT  ;  Nris.vNCE ;  I'.viEN  rs ; 
CorYUKiirr;  THAi>K-MAitKS.) 

INSOLVENT  LAWS. 

Impair  obligation  of  contracts  when,  l.'4H-L'.»:!. 
Effect  of  (lomicil  of  creditor  on,  '.'51,  L'5'J. 


"JEOPARDY." 

Meaning!  of,  '-".U,  292, 

JURISDICTION. 

Equity  acts  on  tiie  person,  IL'7,  r-'t<. 

"LAW  OF  THE  LAND." 

What  is,  284.  28i;. 

LAWYERS.  . 

State  may  prescribe  (|uallttcation  of,  L'.3,  2,4. 

LEGACIES.     (See  Wills.) 

LETTERS. 

Property  in,  K'.O. 

LICENSES.  . 

Not  "  contracts  "  within  tlio  Constitution,  2.U. 
Nor  "  privileges  or  immunities,"  275. 

Vendor's  Hen  for  purchase-money,  .2,  -a. 

LIQUORS. 
Licen.ses  to  sell,  not  contracts,  2;»3. 

Nor  within  amendments  to  constitution,  275. 

^' c"IuIuIioDality  of  statutes  of,  as  to  past  contracts,  240,  254, 
265. 


ullciiial,  L'4',1,  250. 
ANCE;   I'ATEMW; 


ontracts,  240,  254, 


307 


IN HEX. 

LIMITATIONS  OF  I'OWKK. 
Gfni;riil,  ill  Constitution  do  not  apply  to  States,  lhl-185. 

LITEKAUV  PIUACY.     (See  Coin  uniin.) 

LIVP:KY  STABLi;. 
Not  a  nuisauce  ;«'/•  SI',  154. 

LOTTERY. 
License  to  run  lottery  not  ii  contract,  2:!'.'. 

maruiagp:. 

Contracts  in  restraint  of,  102. 

MARRIED  WOMEN. 

Efiulty  to  settlement,  7:^75. 

llcr  property  ri^ht.s  in  equity,  74-7<l. 

Rijjhts  and  liabilities  as  to  separate  estate,  77-79. 

Restraint  on  alienation,  80,  81. 

MARSIiALLI.N(J  ASSETS. 
Rule  as  to,  02,  O:!. 

MASTER  AND  SEK,  ^.'.'^. 

Statements  as  to  torniei  employment  when  enjoined,  170-178. 

MAXIMS  OF  EQUITY. 
"  E(iuity  follows  the  law,"  7,  00. 

"  Equity  looks  on  that  as  done  whifh  ought  to  be  done,"  39. 
"  E(iuity  imputes  an  intention  to  fulllU  an  oblijiation,"  48.. 
«'  E(iuality  Is  e(|Uity,"  00,  71. 
"  He  who  seeks  equity  ntust  do  e(iuity,"  73. 
"  E(iuity  acts  in  peotiurtm,"  127. 

MISTAKE. 

Mistakes  of  law  when  and  when  not  relieved,  ',i4-'.i8. 
Mistakes  of  fact  when  and  when  not  relieved,  'J9-101. 

MORTGAGE. 
Equitable  mortgages,  04,  05. 

MUNICIPAL  CORPORATIONS. 
(Charters  to,  not  contracts,  244. 
But  property  of,  protected,  244,  245. 

NOISE. 
Nuisance  from  noise,  143-145. 
Bells,  143-145. 


:iOH 


INDEX. 


NOISE  — Continued 

Improper  use;  horses  in  stable,  UC-U8. 
Proper  use  noise  not  enjoined,  14'.)-15«. 

NOXIorS  VAI'OUS. 

iMlully  will  restrain,  i;l.-.-i;!;,  140. 

NUISANCE. 

E<iuil.v  will  restrain  nuisance,  1155-137. 
Will  restrain  public  nuisance,  \W,  13!'. 

House  of  Ul-fanie,  13^. 
Will  restrain  smoke  ami  noxious  vapors  ami  smells,  140. 
Will  restrain  noise:  bells,  143-145. 

Improper  use,  horses  in  stable,  14(1-148. 
Proper  use,  14',)-151. 
No  trade  a  nuisance  per  se,  153-155. 

Livery  stable,  154. 
May  be  ilisa«reeal)le  without  being  hurtful,  150-1 5«. 
Coming  to  nuisance  no  defence,  I5',t-Ull. 
Length  of  time  Immaterial,  UV2,  103. 


OFFICES. 

Of  United  Slates  cannot  be  taxed  by  Slate,  3(M. 
Of  Stale  cannot  be  taxed  by  Unite.l  States,  I'iMi. 
Not '  contracts"  within  Conslllullon,  SM. 


PATENTS. 

Infringement  of,  enjoined,  li',4-H'.<!. 

PENALTIES  AND  FOUFEITUHES. 
When  not  enforced  in  equity,  ^i^^,  •''•',  70. 
Reliaved  from  on  ground  of  accident,  s'.>,  i>2. 

PEHFOUMANCE. 

The  doctrine  of,  48-51. 

PILOTAGE  LAWS. 
Power  of  States  as  to,  '-'18. 

POLICK  POWER. 
t^Mumerce  and  the,  L".'5-2-'7. 
Protection  of  public  health,  L'.U,  2";5. 
Jiesides  in  the  Slates,  •.'•!(!,  L'';7. 

But  must  not  conflict  with  natural  rights,  J'.s-'-'.  l 


INDEX. 


309 


rOWT'.RS. 

hr.perfect  execution  of,  rtMnedied,  80. 
Powers  coupled  witli  trusts,  88. 

i'rauds  on,  11:^,  114. 
I'RECATOUY  TUrsTS. 

What  are,  1 1  ■ 
..piUVlLEGKa  OH  IMMUNITIES." 

Admission  to  the  bar  not  within  this  terra,  .'.-.  -'.3. 

Nor  privileges  of  corporations,  2.4. 

Nor  riglit  to  sell  liquors,  275. 

rURGHASERS. 

Bona  fide>  protected,  115. 

RAILROADS.     (See  Re.u  i.vnoss.) 

RECONVERSION. 
The  doctrine  of,  40. 

REGULATIONS. 

Of  railroads  constitutional,  278,  2,0. 

And  of  rates  of  fare  on  railroads,  2.SO-282. 

And  of  charges  of  elevators,  282,  :!8;5. 

RESULTING  TRUSTS. 
When  do  and  do  not  arise,  U,  15,  K.. 

REVOCATION. 
Trust  cannot  be  revoked  when,  10. 

SATISFACTION. 
The  doctrine  of,  62-58. 

SHELLEY'S  CASE. 
Rule  of,  explained,  4. 
Does  not  apply  to  executory  trusts,  4,  fi,  7. 

SMELLS. 

E(iulty  will  enjoin,  140. 

SMOKE. 

Equity  will  enjoin,  135,  137,  140. 

SPECIFIC  PERFORMANCE. 

Not  decreed  of  chattels,  when,  110-120. 
Articles  of  special  value,  118,  1H». 
Decreed  of  real  property,  121-124. 
When  not  decreed,  125,  126. 


810 


INDKX. 


STATES, 
rolicu  power  resides  In  the  States,  20(1,  207. 
But  must  not  conlllct  with  national  riglits,  208-271. 
(ienenil  limitations  in  Constitution  do  not  apply  to,  181-186. 
Ciiunot  tax  federal  aj;uncies,  202-205. 
Cannot  levy  "  duties  of  tonnage,"  208-210. 
Power  as  to  borrowing  money,  211-214. 
Cannot  "resrulate  commerce,"  215-227.  , 

i;.\cept  as  to  local  regulations,  218. 
And  in  matters  of  police,  225-227. 

STATUTE  OF  FRAUDS. 
Trusts  must  be  iu  writing,  2. 

STAY  L.AWS. 
Constitutionality  of,  249. 

SUKETIES. 
Contribution  between,  in  equity,  71. 

TAXATION.     (See  also  Ditiks.) 
Extent  of  the  taxing  power,  188-191. 
Cannot  be  exercised  on  property  beyond  jurisdiction,  191. 
Tax  must  be  for  public  purpose,  192, 193. 
What  are  "  direct  taxes,"  194-190. 
State  duties  ou  "  imports,"  197,  198. 
State  duties  on  exports,  199-201. 
States  cannot  tax  federal  agencies,  203. 
No  United  States,  State  agencies,  200. 
I'nited  States  ofHces  not  to  be  taxed  by  State,  203. 
Nor  State  olRces  by  United  States,  200. 
What  are  "  duties  of  tonnag^"  208-210. 
Exemptions  from  taxation  ar)  contracts,  237. 

TENANCY  IN  COMMON. 

Rules  in  eijuity  as  to,  0(i,  07.    . 

TRADE. 
No  trade  a  nuisance  per  se,  153-155. 

TRADE-MARKS. 
Family  name  when  used  to  deceive  enjoined,  170. 

Otherwise  when  no  intent  to  deceive,  174,  175. 
No  relief  to  wrong-doer,  171. 
Right  to  trade-mark  acquired  by  user,  172. 
What  may  be  subject  of  trade-marls,  172. 


^■M 


IXUKX. 


311 


TRUSTEE. 

Detiniliou  of,  3. 

TRUSTEES. 

rurchases  by  trustees  generally  iiivaliil,  24,  '.'5. 
Compensation  of,  2(;. 
rurcUases  from  trustees,  '.'7,  'J8. 
Responsibility  for  acts  of  co-trustee,  20,  .^n,  31. 

TRUSTS.     (S-ee  also  Tiustkks.) 

Doctrine  of  uses  and  trusts  explained,  1,2, 

Must  be  In  writin<i  by  statute,  2. 

Detlnltion  of  trust,  :*. 

Rule  in  Shelley's  case  does  not  apt  ly  to  executory  trusts,  C. 

Imperfect  conveyance  constitutes  a  trust,  s. 

Except  as  to  volunteer,  '.K 
Constructive  trust,  22-2s. 

Vendor's  lien  for  purchase-money,  22,  23. 

Purchases  by  trusties,  24,  2.".,  2ti. 

Purchases  from  trustees,  27,  2s. 
Cannot  be  revoked,  when,  10, 
Precatory  trusts,  11,  12,  13. 

When  resulting  trusts  do  and  do  not  arise,  14,  15,  10. 
Failure  of  trust,  l',>. 
Charitable  trust  does  not  fall,  20. 
The  "C.V  pres"  doctrine,  20,  21. 

USES. 
No  use  upon  a  use,  1. 
Doctrine  of  u^es  explained,  1,  2,  3. 
The  statute  of  uses,  2. 

VOLUNTEER. 
Definition  of,  0. 


The  different  kinds  of  lesacies  and  their  effects,  33,  34,  35. 
Donatio  mortis  causa,  3<!,  37,  38. 
Satisfaction  of  legacies,  52-58. 

WOMEN. 
State  may  refuse,  admission  to  bar,  273,  274. 


^ 


Xi  J.  .'■ 


